THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
OTTAWA, Monday, May 10, 2021
The Standing Senate Committee on Aboriginal Peoples met by videoconference this day at 10 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.
[Editor’s Note: Portions of the proceedings were presented through an interpreter.]
The Chair: Honourable senators, I wish to welcome all of you, as well as our viewers across the country who may be watching us on sencanada.ca, to this meeting of the Standing Senate Committee on Aboriginal Peoples.
Before we begin, I want to acknowledge that we are meeting today on the unceded lands of the Algonquin Anishnabeg.
There are a few housekeeping items to go over before the introductions. 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 challenges 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 at the technical assistance number provided in the meeting confirmation document.
In order to safeguard the confidentiality of conversations, I remind senators, their staff and committee support staff participating in this meeting that it is their responsibility to ensure that 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 participate in this meeting in a private area and be mindful of their surroundings.
My name is Dan Christmas. I’m a senator from Nova Scotia, and I am privileged to serve as the chair of this committee. I will now introduce the members of the committee who are participating in the meeting: Senator Margaret Dawn Anderson from 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.
There are other senators who are not members of the committee but whom we are pleased to have join us. We expect to have Senator Yvonne Boyer from Ontario; we have Senator Brent Cotter from Saskatchewan. Senator Pierre J. Dalphond might join us later, as well as Senator Mary Jane McCallum from Manitoba.
I will now introduce our witnesses this morning. I’m very proud to introduce Dr. Sheryl Lightfoot, Canada Research Chair of Global Indigenous Rights and Politics at the University of British Columbia; Dr. Wilton Littlechild; and from the Indigenous Bar Association, we have Drew Lafond, President, and Lori Mishibinijima, Board member.
Dr. Lightfoot, Dr. Littlechild and Mr. Lafond will provide opening remarks of approximately six minutes each that will be followed by a question-and-answer session. The first question 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 a question, including our non-member senators, they are asked to use the raised-hand feature on Zoom to signal this to the clerk. They will be acknowledged in the Zoom chat. Please note that committee members will be given priority on the list of questioners. If by chance I have to cut off an answer, you can ask a question and witnesses can submit a written follow-up in writing 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 the speaking time of both witnesses’ introductory remarks and regarding senators’ questions and the answers. The chair will do a 10-second visual countdown by putting hands up on the screen, and when it gets to five and zero, I will advise that the time is finished.
Thank you very much for bearing with me through those remarks. I would now like to welcome our witnesses to begin their opening remarks, beginning with Dr. Lightfoot.
Dr. Sheryl Lightfoot, Canada Research Chair of Global Indigenous Rights and Politics, University of British Columbia, as an individual: Good morning, senators.
I want to open this morning by acknowledging that I’m joining you from the traditional ancestral and unceded territory of the Musqueam people, where we now refer to as Vancouver, where I work and live. I want to express my thanks for being with you this morning.
I’m Anishinaabe from the Lake Superior Band of Ojibwe. At the University of British Columbia, I’m Canada Research Chair of Global Indigenous Rights and Politics. Most recently, I was appointed as the North American member of the UN Expert Mechanism on the Rights of Indigenous Peoples.
However, I’m here this morning in my personal capacity and do not represent any organization. My aim is to provide you with perspective based on my academic and human rights expertise. I’m pleased to be here today in the hopes that Bill C-15 might soon receive Royal Assent. I’d like to make several points during my six minutes.
First of all, Indigenous human rights instruments like the UN declaration are developed with the intention that they will be implemented domestically and in full. Just like the milestone Universal Declaration of Human Rights in 1948 articulated the fundamental human rights of all members of our human family, the UN Declaration on the Rights of Indigenous Peoples translates those fundamental human rights into the Indigenous context and establishes minimum standards for the survival, dignity and well-being of Indigenous peoples.
In my academic work as a political scientist, I’ve observed and written about a pattern I’ve called selective endorsement. This means that some nation-states, including Canada, have a tendency to want to water down the UN declaration and accept only parts of it for implementation and then self-select out of other human rights. It’s simply not morally acceptable to pick and choose among human rights that one will respect while others are left behind. As Canadians, we criticize and hold many other countries to account for this very pattern of behaviour.
Global institutions are increasingly expecting full implementation of the UN declaration. The UN General Assembly has reaffirmed it at least 10 times to date, it is cited routinely by UN special rapporteurs and it is increasingly called upon by international treaty bodies. In fact, the Committee on the Elimination of Racial Discrimination issued a letter to Canada in November 2020 asking specifically for an update on the status of the implementation legislation under study here.
Then, of course, it serves reminding all that the Truth and Reconciliation Commission’s Call to Action No. 43 called upon all levels of government in Canada to adopt and fully implement the UN declaration. Then, following in 2019, the 231 Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls included call 1.2(v), which calls upon all governments to immediately implement and fully comply with the UN declaration.
Much of my scholarly work examines the comparative experiences of Indigenous peoples around the world, and I feel that Bill C-15 is advancing the global conversation on Indigenous human rights implementation and sets a very positive example for other nation-states.
A number of states around the world have undertaken legal and policy measures to implement the declaration. Committee members may have heard of New Zealand’s National Plan of Action, for example. Several countries in Africa have also implemented national legislation and corresponding policies. Latin America has been especially proactive with constitutional reforms, and various national courts around the world have cited the declaration in legal decisions. My own database shows that, as of the end of 2020, there are 98 court decisions in Canada that refer to the UN declaration.
National human rights institutions in many countries use the declaration as a framework for monitoring the implementation of Indigenous peoples’ human rights at the national level. The declaration is also being implemented regionally in locations such as the European Union, Organization of American States and the African Commission. The Inter-American Court of Human Rights has also drawn substantially from the declaration. For more than a decade, it has been used to set guidelines and standards on the international level, and a number of international organizations have developed policies and guidelines to align with it. The UN’s system-wide action plan on Indigenous peoples, launched in 2016, aims to further increase system coherence in advancing the implementation of the UN declaration.
I’ve heard others argue that federal legislation is not required in order to begin all of this work on a national action plan and I disagree. Bill C-15, I think, is critical to formally ensure ongoing implementation efforts proceed at the federal level in a systematic and methodical way. In my view, Bill C-15 represents the best approach to human rights implementation that I have seen on the global level, and it will set a genuinely positive example for the rest of the world community. Thank you very much.
Dr. Wilton Littlechild, as an individual: [Cree spoken].
Greetings in my Cree language to thank the great spirit for yet another blessing, and to thank each of you on this historic occasion to comment on the examination of Bill C-15 on the UN declaration.
I prefer to present a personal view through a positive lens. I have been told many times that I don’t speak for the chiefs, so from a holistic perspective, one can view, for example, the preamble as a compilation of 17 solution-based paragraphs to advance reconciliation, treaty implementation and to pursue my elders’ instructions for recognition, respect and justice. In the preamble’s first paragraph, the focus on the reconciliation framework promotes a positive start to Bill C-15 and to working together towards being well. Healing from harms done during the Indian residential school era indicates a significant objective. On peace, it is particularly important for peace and friendship treaties in restoring respectful relationships; PP1 puts us on a path. Also noting justice, respect for human rights highlights our elders’ ceremonies guiding our way throughout our work. A reference to respect and promotion of our inherent rights — [Cree spoken] — spiritual traditions and legal systems are all essential elements of our fundamental right to self-determination — [Cree spoken]. The positive aspect continues with the much-discussed free, prior and informed consent.
I had the great honour of chairing the first United Nations meeting of international experts on free, prior and informed consent, and here is my report that I submitted to ECOSOC. The quote I want to draw your attention to in that report is a summary conclusion which states:
In summary, while there were challenges to the implementation of free, prior and informed consent, in general, most participants considered that the favourable outcomes of a free, prior and informed consent process far outweighed the difficulties of such a process.
From a more recent study, which includes examples of global good practices, I have submitted to the committee the UN Expert Mechanism study and report on free, prior and informed consent.
Another important reference is the international Inter-Parliamentary Union special conference implementation of the UN declaration by parliamentarians from all over the world. It’s a handbook for parliamentarians. On page 3, they state: “It is now time to move towards the implementation of the UN Declaration’s provisions.”
Further, on page 27, it asks: “What is free, prior and informed consent and why is it important for parliamentarians?” and it goes on to state:
The duty of States to obtain, or in some cases seek to obtain, indigenous peoples’ free, prior and informed consent is clearly expressed in the UN Declaration . . .
It sometimes appears that private industry — and admittedly with some support from Indigenous peoples — argues that businesses and investors will be driven away by FPIC. To those, I would refer you to the Global Compact, which asks companies to embrace, support and enact a set of core values in the areas of human rights. There is a questionnaire that corporations have to fill out on a self-assessment basis for their compliance with the UN declaration based on two principles. There are literally thousands of corporations that have signed on through the Global Compact, and now there is also a new Global Compact that focuses on Canada. There is also the new business and human rights forum at the UN currently discussing a convention.
In summary, I want to say that FPIC does five things: first, it upholds the sovereignty and self-determination of Indigenous people; second, it protects Indigenous lands, territories and resources; third, it reduces or eliminates the risk of material loss; fourth, it facilitates equitable partnerships; and fifth, it calls on us to work together.
FPIC is not a new concept. Consent is a right that was included in the Royal Proclamation of 1763. It is included in our international treaties, first as consent, then as mutual consent and now as FPIC. Personally, I was very disappointed to see that the previous committee did not include paragraph 2(5) — for greater certainty. Treaties are a basis for strengthening partnerships and are a solution. Finally, senators, I urge you to pass this bill in a non-partisan way. After all, it’s about our equality, survival, dignity, well-being and reconciliation. Hiy hiy, thank you.
Drew Lafond, President, Indigenous Bar Association: Thank you and good morning to the committee. Thank you for the invitation.
My name is Drew Lafond, and I’m here representing the Indigenous Bar Association in Canada, a not-for-profit organization representing Indigenous lawyers, judges, students and academics across Canada. [Indigenous language spoken.].
I’m presenting to you today from the Treaty 6 territories located in Saskatchewan, and I’d like to begin by stating that Bill C-15 is a laudable attempt at domestic implementation and recommendation of UNDRIP in Canada. However, for the reasons that are detailed in our correspondence to the House of Commons standing committee on Bill C-15 dated March 11, our support for the bill is heavily qualified.
The IBA’s hesitation in providing an unqualified endorsement of Bill C-15 is rooted in Canada’s legacy of unfinished business when it comes to implementing foundational and fundamental changes concerning Indigenous peoples. In the case of Bill C-15, there is a concerning disharmony between the bill’s stated intention and the current text of the bill. It’s important to mention that the IBA is a not-for-profit organization. It is not a rights-bearing entity. We recognize that Indigenous peoples, as sovereign nations in Canada, will have their own relationships with UNDRIP. Just as Canada is working to implement UNDRIP within Canadian laws, Indigenous governments are likewise working to consider how the rights and responsibilities outlined in UNDRIP will find expression within their respective nations, their legal systems and relationships with one another in the Canadian state.
We recognize that many Indigenous leaders, advocates and legal warriors played an instrumental role in the development of UNDRIP and its adoption by the UN General Assembly. Their advancement in the recognition and respect for implementation and enforcement of Indigenous rights has laid a strong foundation for Canada, including the hard work of some of our members who have come before our current board, namely Dr. Littlechild.
That being said, on the one hand, in the case of Bill C-15, statements by Minister Bennett, which unequivocally provided for the adoption and implementation of UNDRIP in Canadian law and the text currently before us today, where Parliament has not taken the steps that it has taken in the case of other international instruments and their implementation in domestic law, is very concerning to the Indigenous Bar Association.
We have provided five recommended changes to Bill C-15 in our correspondence to the House of Commons standing committee, and we would be happy to explore those proposed amendments with the Standing Senate Committee on Aboriginal Peoples here today. Thank you.
The Chair: Thank you, Mr. Lafond. Now I would like to open our questions, beginning with our sponsor of the bill, Senator LaBoucane-Benson.
Senator LaBoucane-Benson: Good morning, and thank you to all of our guests and experts for their words today. My question is for Chief Dr. Littlechild.
I was very heartened to hear all the information you shared on FPIC, and I would like to ask a question about certainty. Many people, Indigenous and non-Indigenous, are worried that Bill C-15 will cause uncertainty in industry. Can you help us understand how the implementation of Bill C-15 will, in fact, create investor certainty?
Dr. Littlechild: First of all, I’m disappointed at the mischaracterization and actual fear-mongering that has gone on with regard to this declaration and the bill itself. As I said, I was disappointed as well because the leading words of subparagraph (5) of Article 2 are “for greater certainty,” and that was left out of the previous committee’s submission.
I think when you take the declaration and the bill, of course it’s not perfect, but our job is to improve and strengthen it. For those who are afraid of it, try it and do it right, and you’ll see that it works.
The Chair: Thank you, Dr. Littlechild. The second question goes to the critic of the bill, Senator Patterson.
Senator Patterson: Thank you for being here, witnesses. I’d like to ask this question of Dr. Littlechild. It’s nice to see you again before our committee.
Given your background in domestic and international law, and our witnesses from the IBA, on Friday Minister Lametti told this committee that past decisions by courts will “continue to stand” and 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 doctrine of legal precedent clearly binds courts of equal or lower stature to previous decisions of the higher courts. Do you also understand that Bill C-15 does not disrupt the doctrine of legal precedent? That is, will past decisions of higher courts continue to apply upon passage of the bill? Thank you.
Dr. Littlechild: I think it’s time to turn the page. I heard it in the Supreme Court of Canada once, and I thought the lawyer was going to get kicked out when he said, “What we need on the bench is judges with guts.” What he meant by that was it is time to change some of the old laws that continue to hold us back as Indigenous peoples. Yes, there is a legal precedent but also opportunities for judges to change the law and make it better, and bring it up to date, for example. I would make those comments in terms of law.
There was a law professor who took the 10 worst Supreme Court legal decisions against Indigenous peoples, and he reread all of those decisions and then read them with the declaration in hand. He concluded that all those 10 cases would have been dealt with differently had the declaration existed at the time. So it’s time for a change. That’s what I would say.
The Chair: Thank you, Dr. Littlechild. Now I’d like to go to Senator Stewart Olsen.
Senator Stewart Olsen: My question is for Mr. Lafond. I reviewed the clause-by-clause consideration in the House of Commons committee, and I was struck by the fact that amendments that were brought forward for the operative part of the bill were rejected by government members but accepted and put into the preamble. For example, the amendment to recognize treaty rights is not frozen but capable of growth and evolution. I would note as well that the preamble is an interpretive tool and carries no force in law.
Does it concern you that the government is not committed to clarifying amendments that have been endorsed by courts in the operative part of the bill? I raise this with you because I’m concerned with this bill raising a lot of expectations that it then refused to put in the bill.
Mr. Lafond: Thank you very much for the question, senator, and I think that’s consistent. You’ve nailed our concerns in our written submissions squarely with what we are trying to convey.
As you are aware, international law is extraordinarily complex for the average person. Being a lawyer practising in corporate, commercial, jurisdictional and constitutional law for just over 12 years, I myself have a significant amount of difficulty when going into the international law realm. It is a very nuanced area, and there is a lot of language and a lot of precedents you have to digest in a short period of time if you want to take on something of this nature.
When you get into this area, we know that UNDRIP is not an international accord and it’s not a convention. It is a declaration, but we also know that Parliament has the ability and authority to implement the terms of international declarations into domestic law to make them valid and binding.
Now, that’s not to say there are not provisions within UNDRIP right now that aren’t already binding. Just by their nature, there are a few provisions within UNDRIP that we can walk through that are simply repetitive of earlier commitments regarding human rights that are reflected in Canadian law. However, there are a lot of provisions within UNDRIP that are not currently legally binding on federal lawmakers, so the process is what we are concerned about in this case.
The process of implementing the law needs to be clearly and unequivocally set out in the legislation that provides for the implementation, and it’s in this regard we are curious as to why Canada has fallen short of other instruments where they have taken non-binding international covenants and tried to implement them in Canada, where the language of those statutes is unequivocal. When you look at the language, it’s almost as if Parliament, in drafting the legislation, has danced around some pretty clear objectives, one of which is implementing UNDRIP.
The Chair: Thank you, Mr. Lafond.
Senator Coyle: Thank you very much to all the witnesses who presented this morning. It has been very helpful. My question is for Dr. Littlechild. Welcome back. It’s lovely to see you again, and I’m sorry we didn’t get it done last time.
You told us this whole experience that you were involved in took 24 years for the United Nations to approve this declaration. One of the reasons was to find the right wording that would be acceptable to all parties — in particular, wording around “free, prior and informed consent.” Could you comment on the process that you and your colleagues from around the world went through to get to that language that is there? Help us understand why you came to that exact language, and why it’s important for us.
Dr. Littlechild: First of all, the international arena — at least at the United Nations — works on the basis of consensus. So it only takes one state to say “no” and you start all over again. That’s why it has been the longest-debated declaration in UN history — 27 years. That is sometimes because of political change as well — elections — that changes the ideology of delegations that come to the UN. So yes, it was a long process. After the Permanent Forum was established, during the first three years we kept hearing about the need for free, prior and informed consent because our people were still being murdered or killed by corporate armies, and they said we need to have a look at this.
So we called for an international meeting of international independent lawyers to come and discuss over three days at the United Nations what free, prior and informed consent means. Actually, I heard previous witnesses call for a definition. The definition is embedded in that phrase, “free, prior and informed consent.” It’s really important, especially because of the example I just gave you about the killings that continue. This is not wordplay. Killings involving our people are happening.
I was invited recently to go to a country to look at what was going on. They told me at the airport, “You better not come.” I said, “I have my ticket; I’m ready to board,” only to find out the next day that 200 people were killed in the Philippines. The same thing happened in Peru. The same thing happened in Guatemala.
The Chair: Thank you, Dr. Littlechild.
Senator Francis: This question is for Dr. Lightfoot. Congratulations on your appointment as the North American representative on the United Nations Expert Mechanism on the Rights of Indigenous Peoples. In that regard, you are not only following in the footsteps of Dr. Littlechild but breaking barriers as the first Indigenous woman from Canada to hold the position.
I would like to ask you to comment on how Bill C-15, if adopted, may affect Canada’s international reputation, especially after the failure to pass its predecessor, Bill C-262. What impact would it have for the promotion and protection of Indigenous rights both at home and abroad?
Dr. Lightfoot: Thank you very much, Senator Francis, for your warm congratulations. It is a significant honour for me to follow in the footsteps of my predecessor, Dr. Littlechild. It is always an honour to appear on a panel with him like I am this morning.
Thank you for the question. I see Bill C-15 as a Canadian opportunity in the international sphere. It is an opportunity to lead in this area and significantly enhance Canada’s reputation. However, of course, it isn’t just passing the legislation that would enhance Canada’s reputation, it’s full respect for the rights of the UN declaration in all of our practices, both domestically and abroad, that is the piece that the world will be looking to. In my view, it will set a positive tone for other countries to push ahead with similar implementation measures, be that legislation, movement on national action plans or what I think is critically important for Bill C-15, the reporting mechanism and the required reporting and accountabilities on a regular basis. As we all know, we all perform better when we have to report on an annual basis for our performance. I look forward to this being something that is a new norm socialized in the international space, and that there would be legislation and requirements for full reporting and accountability on a regular basis, which, of course, will be read not only domestically but also overseas. So I think it’s a significant opportunity.
Senator Francis: Thank you, Dr. Lightfoot.
Senator Forest-Niesing: Thank you very much to all of you for being with us and enlightening us with respect to this important bill.
The previous question and answer provide the perfect segue for my question. We have heard from several witnesses who encourage us not to miss this opportunity to pass this piece of legislation. It’s very important, as has just been highlighted by Dr. Lightfoot, as an opportunity for Canada to demonstrate leadership in this area.
The question I have for you is based on the repeated insistence from several witnesses that perfection should not be the enemy of the good. I’m particularly interested in Mr. Lafond’s response to that in the context of Bill C-15.
In your own document you have presented five recommendations that have not found their way in the form of the amendments that you were hoping for. Is it your position that the bill still needs further amendments before it should be considered, or do you agree that it is possible for the bill to pass and for future improvements to be brought through the annual process of review and the development, of course, of the action plan?
Mr. Lafond: Thank you for the question, senator.
Our concern in this case has always been and continues to be the wording of the statute.
As I indicated in my earlier comments, we applaud the intention of the government in bringing this legislation forward. We think it’s an important and critical step. We are at a juncture here where we have an opportunity to capitalize on a political opportunity to implement legislation which brings into force and effect UNDRIP in domestic law, but we haven’t done that yet from what we can see within the bill.
The bill and the language within it fall short. You don’t have to look any further than the title of the bill itself. When we look at other international conventions or accords or even declarations, they are identified as implementation acts, both federally and provincially. For whatever reason, that wasn’t introduced in this case. The bill itself, even starting with the title, falls short in its commitments to a legally binding and clear and cognizant process for implementing UNDRIP as federal law. Is it possible to implement now? Certainly, yes, it is, but the fear is that implementation will be incomplete and unfinished.
The Chair: Thank you, Mr. Lafond.
Senator MacDonald: My question is for Dr. Littlechild. Article 19 outlines the need of states to gain the free, prior — and I emphasize “prior” — informed consent of Indigenous peoples before passing any legislation or policies that would affect Indigenous rights. Article 3 also says that Indigenous peoples have the right to determine their own political status.
Last Friday, Grand Chief Abram stated, “I don’t know one rights holder in Ontario that has been engaged in this particular legislation.”
We were told unreservedly by the Association of Iroquois and Allied Indians that they rejected the engagement process of Bill C-15 because it does not extend to rights holders. They said they reject this bill and I take that to mean they withhold their consent.
Can you please help me understand this? We have been told that consent is contextual, so in this context, does consent just mean the consent of some? Thank you.
Dr. Littlechild: I would remind you that the previous version, which has now been enhanced — Bill C-262 — was adopted by the House of Commons. We as the Truth and Reconciliation Commission held the longest and most extensive consultation of Indigenous peoples. Over 7,000 witnesses came in front of us and talked about the UN declaration.
In terms of the time frame, how much time do we need? Also, it’s very easy to reject something. It’s very easy to tear something down, but it’s quite another thing to build. And that’s what we’re trying to do, to build a better future here for Indigenous peoples.
As far as the president of the IBA’s comment about the title, I presented that myself. Change the title. That too was rejected. It’s not just the time allocated for the consultation.
I don’t know how many years — I think since 2007 we have had consultations on this. When is it enough? When do we know the truth of what is happening and what happened? I think the time is now.
To the third part of your question, I think it was about —
Senator MacDonald: In this context, does “consent” just mean the consent of some? That was my question.
Dr. Littlechild: Yes. Well, the committee itself selects the witness list, don’t they, and also the parliamentary committee?
The Chair: I’m sorry, Dr. Littlechild. The time has expired.
Senator Anderson: [Indigenous language spoken].
My question is for Dr. Lightfoot. In your introduction statement, you referenced 98 court decisions that refer to the declaration. What do you see as this bill’s role and application in the courts? What is your opinion on the thoughts by some that it will provide a veto for Indigenous people?
Dr. Lightfoot: Thank you very much for the question, senator. The database that my team at UBC and I have been putting together on the court decisions shows that, as I mentioned, by the end of 2020, there were 98 decisions in Canadian courts — various courts; provincial, federal, and the human rights tribunals — that referenced the UN declaration. Some of them went back as far as 2001, referencing the draft declaration on the rights of Indigenous peoples. Some of these, I would say, are light or minor references. Others are more major substantive references.
Passing this legislation brings significantly enhanced visibility to the judiciary in how the declaration can be used. I am intending to produce a paper that shows how it has been used to date that will serve as an educative tool. And I know that many of the legal associations are working on continuing education for both attorneys and judges on the subject. I think it’s a significant advancement forward.
In terms of veto, that is a word that gets used a lot and in many circles. I think it’s important that we understand what we mean when we use that word. Some are using it to mean the right to say no, and some are using it to mean the right to overlay a decision that has been taken by a particular polity. We need to be consistent in how we understand that word “veto.”
Note that “veto” is nowhere used in the declaration itself. Veto is typically used as a fear-mongering tool, as Dr. Littlechild has mentioned, but the essence of free, prior and informed consent, or FPIC, is really quite simple. Consent means that one has the ability to say yes to a proposal, to say no to a proposal, or to say, “Yes, but I have conditions” to the proposal.
In simple human terms, I have heard it described as when one is going into a marriage, a lifetime commitment, one cannot promise you will never renovate the bathroom. However, one can promise that if one wants to renovate the bathroom, there will be a process and procedure for going through with one’s partner how we would decide to renovate the bathroom.
I think when we put it in those simple human terms, consent and the right to say yes, no or yes with conditions become a bit clearer and much less foggy.
Senator Anderson: Qujannamiik.
The Chair: Thank you, Dr. Lightfoot.
Senator Tannas: Thank you to all these eminent witnesses whom we have with us today. I wanted to spend my time on something that is troubling me a little bit. I am hoping to get clarity. It surrounds this narrative that Bill C-262 is essentially the same bill as Bill C-15 and that somehow we missed the opportunity with Bill C-262 and now it’s being presented again and that they are identical.
My question is to Mr. Lafond. Can you shed some light on this? Is Bill C-262 the same as Bill C-15? I’m thinking about the language, the placement of certain passages and so on, in Bill C-262, particularly the sentences in what was called the operative section of the bill which gave rise to huge concern from Canada Research Chairs and other experts, including a retired Supreme Court Justice, who felt compelled to present briefs.
We have heard different messages now from the government with respect to the timing and that we’ll sort out the FPIC question in the next couple of years and territories and who gives consent and who doesn’t and so on. Could you help me lay to rest the fact that Bill C-262 and Bill C-15 are two different bills and had different strengths and weaknesses — or not?
Mr. Lafond: Thank you for the question. In Bill C-262, Mr. Romeo Saganash ultimately did lay a strong foundation for Bill C-15. I can’t speak to the criticisms that were laid against Bill C-262 when it was introduced in Parliament at that time. I can only talk about some of the evolution that has taken place.
The previous bill, the Bill C-262 wording, has been provided for members of the committee for their consideration. It is very important in this case to outline the underlying intention behind the implementation of UNDRIP and where we’re at today in terms of language.
The substance of Bill C-262 and the intention of Bill C-15 in both cases is identical, but as I mentioned before, under the auspices of Bill C-15, the biggest risk that we see with the Indigenous Bar Association is that the implementation in this case of pretty foundational provisions, including FPIC and Article 37, are going to be incomplete and remain unfinished.
Senator Tannas: Right. Okay. Thank you.
The Chair: Thank you, Mr. Lafond.
Senator Pate: Thank you to all the witnesses. I want to pick up with the Indigenous Bar Association. In your submission to the House committee, you talked about the importance of ensuring that necessary funding and capacity supports are available to Indigenous communities, governments and organizations from both the development of the plan and implementation of the UN declaration. Could you please elaborate on what you actually think needs to be in place? Because certainly we have seen through this committee, with previous legislation, when funding arrangements weren’t in place, it has resulted in legitimate critiques of the lack of implementation processes.
Mr. Lafond: Certainly. In opportunities for engagement with decision makers and, in terms of resources and funding envelopes, to ensure that research and critical analysis is carried out for the analysis and implementation of the bill, we have seen on numerous occasions where funding and engagement have made all the difference in the world, especially in the case of the IBA when it comes to bills such as Bill S-3.
Our ability to participate in these types of processes is extraordinarily limited by our constrained budget. We are a volunteer organization, including myself and the other board members who generously donate their time to issues such as this. As I indicated previously, international law and the implementation of international covenants, conventions and declarations in domestic law is an extraordinary complex process. The ability to navigate that process competently with respect to the importance of issues as important as UNDRIP will be dictated by the amount of resources that are provided and the amount of timely engagement that the IBA is able to become involved with in this case.
Ultimately, it will make all the difference in implementation.
Senator Pate: I would appreciate it if Dr. Lightfoot and Dr. Littlechild could comment on international examples that Canada could look to in terms of the implementation.
Dr. Lightfoot, you mentioned New Zealand. Is there something there in particular we could learn from?
Dr. Lightfoot: Thank you very much, Senator Pate. New Zealand has made significant progress on its National Plan of Action, and there have been some documents that have come out in the last week or 10 days with details on the action plan. It has, however, stalled a bit because there is not legislation that encourages it to continue, so it can very easily get pushed to the side of the desk, which is the risk that we are running at the moment.
The other problem that I have seen is that in some cases, especially in Latin America, there have been moves to move too quickly with legislation without a framework. I think Bill C-15 provides us the best of all worlds and really helps advance the implementation effort on a global scale.
The Chair: Thank you, Dr. Lightfoot.
Senator LaBoucane-Benson: This question is for Dr. Lightfoot. Clause 5 calls on the government to align Canadian laws present and future with the articles of UNDRIP. How do you hope to see this process unfolding if you were to give the government any advice?
Dr. Lightfoot: Thank you for the question. It simply means that as legislation and laws are proposed, they are viewed through the lens of the UN declaration. The work that Dr. Littlechild was referring to by Professor Echo-Hawk in the U.S. context is a significant piece of work, and it reads all of the former court decisions in light of the declaration and explains how they would be different. I need to re-emphasize that.
Of course, we need to be looking at the existing pieces of legislation and determine whether they align with the UN declaration, but also consider, as each one goes forward, does it align with the principles of the declaration moving forward? It’s quite a simple exercise. We do it all the time with any piece of legislation: Does it meet the standards of international human rights? It’s a valid question to also ask when it pertains to Indigenous rights.
Senator LaBoucane-Benson: Dr. Lightfoot, you said that Bill C-15 represents a new standard internationally for the implementation of UNDRIP, and that’s in the accountability measures. Can you expand on that quickly, how this is something that nobody else has done globally? What kind of precedent are we setting?
Dr. Lightfoot: Thank you for the question. So far, no one has the critical formula which I think Bill C-15 provides. It’s the combination of the elements. It’s the legislation to set out a very systematic and methodical framework. It provides specific provisions for the creation of the national action plan, which, of course, we have seen in New Zealand but without the legislation, and then also the reporting and accountability framework, which to date I haven’t seen show up in any other polity around the world.
It’s that critical combination that helps meet some of the challenges and gaps we have seen in other locations and moves us all forward. I think it would benefit significant numbers of nation-states in the next decade or two.
Senator LaBoucane-Benson: Thank you very much.
Senator Patterson: I would like to address my question to Mr. Lafond. You talked about this bill as falling short of Canada’s support for other international instruments, such as the declaration, and said that Canada has danced around commitments to implement UNDRIP.
Apart from the point you made about the poorly worded title, could you outline some of the other amendments that the Indigenous Bar Association has recommended? Thank you.
Mr. Lafond: Thank you for the question, senator. Yes, we also outline these for the committee’s reference in our submissions dated March 11, 2021. We have a variety of amendments.
Speaking to the point you’re talking about regarding the equivocal nature of the commitments to implementing the bill, we would start with clause 4. We would like to see language in 4(a) that details the intention that UNDRIP have force and effect in Canadian law and that UNDRIP would incorporate the declaration into Canadian law.
With clause 6 of the bill, we want to see a commitment to incorporate the declaration into Canadian law.
While we say that the preamble is the non-binding language, it does play an important and informative role when you’re looking at the context of the bill as a whole. We would appreciate some additional language regarding the implementation of the declaration that we have identified in our submissions.
Those are a couple of examples that I would like to draw your attention to, just for some added clarity regarding the implementation of UNDRIP and to bring the intentions of the bill more into alignment with its text.
Senator Patterson: Thank you very much to all the witnesses.
The Chair: The time for this panel is now complete. I wish to thank Dr. Lightfoot, Dr. Littlechild and Mr. Lafond for appearing. Thank you very much.
We are now pleased to welcome representatives and witnesses. I would like to welcome Chief Ghislain Picard, Assembly of First Nations of Quebec and Labrador. Accompanying the chief is Mira Levasseur-Moreau, political legal adviser for the Assembly of First Nations of Quebec and Labrador. I would like to welcome Aluki Kotierk, President of the Nunavut Tunngavik Incorporated. I regret to advise the senators that our third witness, Duane Smith, from the Inuvialuit Regional Corporation, has just advised us that he is unable to join us.
I would like to welcome Chief Ghislain Picard and President Kotierk to provide their opening remarks of approximately six minutes each, which will be followed by a question-and-answer session with senators for approximately three minutes per senator.
President Kotierk will deliver her remarks in Inuktitut. Please note that only Inuktitut-to-English interpretation will be available. The English interpretation will then be interpreted into French.
The first question will be asked by the sponsor of the bill, Senator LaBoucane-Benson; and the second question asked by the critic of the bill, Senator Patterson. If other senators have a question, you are asked to use the raised-hand feature, as you notice on the screen already, 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 follow-ups to questions can be submitted in writing 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 the speaking time of both introductory remarks by the witnesses and the senators’ question-and-answer time. I will do a 10-second hand signal for visual countdown. When it reaches zero, I will advise that the time has expired.
I would now like to turn to Chief Ghislain Picard to begin his opening remarks.
Ghislain Picard, Chief, Assembly of First Nations of Quebec and Labrador: Thank you very much. [Indigenous language spoken].
It is a privilege to be hosted by our Mohawk brothers and sisters; I’m speaking to you from Kahnawake this morning.
I would like to start by thanking the Standing Senate Committee on Aboriginal Peoples for the opportunity to address its members this morning. I am grateful on behalf of the Assembly of First Nations Quebec-Labrador (AFNQL), which wishes to present its position on the content of Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples.
On February 26, the AFNQL chiefs unanimously adopted the following motion:
. . . amendments to Bill C-15 are a minimum condition in order for the AFNQL to even consider supporting the bill.
The amendments proposed by the House of Commons Standing Committee on Indigenous and Northern Affairs, before which we testified on March 23, are a step in the right direction, but they are not enough to fix the major problems the AFNQL raised.
Let me be very clear. The AFNQL chiefs support the passage of federal legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples. Implementing the declaration is all the more essential for First Nations who must coexist with the Quebec government, which, in recent years, has expressed positions that are at odds with the principles embodied by the declaration, including the right of Indigenous peoples to self-determination and self-government. This has been the subject of several legal challenges.
In this context, the preservation of the rights and identities of our peoples makes it all the more urgent to integrate the declaration into Canadian law. The political context in Quebec, which shapes the relationship between First Nations and the provincial government, deserves special attention. We have to deal with a provincial government that positions itself as hesitant to engage in discussion about the implementation of the declaration in Quebec despite the resolution adopted by the National Assembly that commits it to negotiating the terms of that implementation. In addition, the Government of Quebec is appealing the constitutional validity of the Act respecting First Nations, Inuit and Métis children, youth and families, also known as Bill C-92, which was passed in June 2019, in the Court of Appeal.
With the federal government considering the introduction of more bills, it is essential that the legislative context be conducive to ensuring that all future bills are consistent with the rights and principles of the declaration. The integration of the declaration into Canadian law is crucial to enabling First Nations to effectively challenge the unacceptable positions taken by provincial governments, such as Quebec, which refuse to recognize our fundamental right to self-determination and self-government. The AFNQL is in favour of the principles in the declaration and of implementing them in Canadian law.
As stated, the standing committee’s recommendations fall short of meeting the AFNQL’s requirement to support Bill C-15. First is our required amendments to clause 2(2) of the bill in order to achieve certainty that the provisions of UNDRIP will be applied to interpret section 35 of the Constitution Act, 1982. Second is the over-reliance of an expansive preamble that fails to reflect the substantive provisions of the bill and, in particular, the repudiation of the Doctrine of Discovery that must be within the body of the bill.
First, the AFNQL is concerned that clause 2(2), which speaks of, in section 35, “maintaining” in French and “not . . . derogating from” in English, could be interpreted as a shield against an evolution of the interpretation of section 35 founded on the rights recognized in UNDRIP. The potential result runs completely counter to the legislative objective of establishing a process towards the implementation of the declaration.
Second, last Friday you heard from the assistant deputy minister, who explained that clause 2(2) uses language that is:
. . . more adapted, shall we say, to the Canadian context than the UN declaration’s language that speaks to diminishing and extinguishing rights.
For reasons explained in greater detail in our brief, the use of standard non-derogation language, which speaks to the interaction between federal laws and the Constitution, cannot be transposed to a context of federal legislation that purports to implement an international human rights declaration based on the inherent rights of Indigenous peoples. Rather, the AFNQL requires that the wording of clause 2(2) be amended in accordance with the wording of Article 45 of UNDRIP and in a manner that aligns with the bill’s stated objective.
Third, clause 2(2) should therefore be amended to, first, expressly establish in both the French and English versions that the laws of Canada including section 35 must be interpreted in accordance with the rights and principles outlined in the declaration and, second, establish that the law does not have the effect of diminishing or extinguishing the ancestral and treaty rights recognized and confirmed by section 35.
Fourth, our second concern is related to the over-reliance of an expansive preamble that fails to reflect the substantive provisions of the bill. Most importantly, the repudiation of the doctrines of superiority contained in the preamble must be strengthened and contained in the body of the bill. As this type of doctrine is at the root of the colonization enterprise from which Indigenous people around the world still suffer today, the repudiation of all doctrines of superiority, including the Doctrine of Discovery, must be unequivocally stated in the body of the legislation.
Fifth, the bill should therefore be amended to, first, clearly state that the Government of Canada reject all superiority doctrines; and, second, add a provision in the body of the bill that confirms the rejection of doctrines of superiority, including the Doctrine of Discovery, in Canadian law.
In conclusion, these amendments are what is minimally required —
The Chair: Thank you, Grand Chief. I’m afraid your time has expired.
I would like to turn now to President Aluki Kotierk, who will be addressing us in Inuktitut.
Aluki Kotierk, President, Nunavut Tunngavik Incorporated: Good morning to all of you. First of all, I would like to acknowledge Bill C-15, which I support. The bill is to recognize Indigenous rights and that which was recognized by the United Nations. It has been five years since the bill was passed at the United Nations and that it would be implemented in Canada and that it would be implemented wholly and fully. The government has to implement this bill in order for this bill to be fully implemented. Before Canada agrees to this legislation, the rights of Indigenous peoples were worked on for many years, and for those who were promoting it there have been many Inuit leaders and policy makers that were involved in the drafting of the rights of the declaration.
Prior to Canada’s endorsement, the drafting of UNDRIP took decades of persistent effort and lobbying. Many great minds were involved. When one looks at the United Nations website, it describes UNDRIP as follows: It establishes a universal framework of “. . . minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.” And it elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of Indigenous peoples.
Let me repeat the phrase, “. . . minimum standards for the survival, dignity and well-being of the indigenous peoples . . .” As you know, as Inuit, our living standards on every level are below that enjoyed by other Canadians in housing, food security, life expectancy and income. Inuit are overrepresented in jails, and we are losing our language at a very dangerous rate. Certainly, within the language context and in receiving essential public services in Inuktut, I have appeared before you trying to provide enough information or the right information to compel you to understand how we merely want to live with dignity within our own homelands.
I do not state these as signs of hopelessness. Instead, I highlight them as current circumstances that need our attention as we continue to make amends with our history with Canada. UNDRIP is a human rights framework that safeguards Inuit and the integrity of our communities. We need to focus our attention on how we will work together towards protecting Indigenous cultures, languages and how we will ensure the living standards of Inuit are up to par with our fellow Canadians.
UNDRIP provides a piece to this. Bill C-15 will not be a solution for everything, yet it is an important tool as we continue to work on our evolving relationship between Canada and Inuit and the federal government. To further strengthen this tool, the government should consider the establishment of an independent Indigenous human rights commission. This would serve as an important independent evaluation and monitoring mechanism. Similar to the way in which the Canadian Human Rights Commission is a pivotal enforcement mechanism that helps ensure that the rights affirmed in the Canadian Human Rights Act are enforceable, the establishment of an Indigenous human rights commission would also ensure that the Indigenous human rights affirmed in Bill C-15 are also enforceable.
The Chair: Thank you, President Kotierk. The time has expired. Now I would like to open the meeting to questions and answers. Since we have some extended time, I will now allow 3 minutes and 30 seconds for each question and answer. I will begin with the sponsor of the bill, Senator LaBoucane-Benson, followed by the critic, Senator Patterson, and then Senator Coyle.
Senator LaBoucane-Benson: My question is for Ms. Kotierk, and I want to thank you for your powerful testimony. Clause 6 of the bill calls on the Canadian government to consult and cooperate with Indigenous peoples and to prepare and implement an action plan. What advice do you have for the government on how they should consult with Indigenous leaders, and in particular with Inuit leaders?
Ms. Kotierk: Thank you for your question. As you may be aware, Inuit have an Inuit-Crown Partnership Committee process with the Government of Canada, and through that process we have been able to have different discussions on important legislation. We have a working group specifically focused on legislation. So I think that’s an appropriate way in which the government can work with Inuit to get our input. Thank you.
Senator LaBoucane-Benson: Thank you. I wonder if I could pose the same question to Mr. Picard. How would you advise the government on consulting in the preparation and implementation of an action plan?
Mr. Picard: Thank you very much for the question, senator. I think it is very timely that we raise this at this point in time in light of the time that we have been allowed throughout the consultation process, and it’s definitely somewhat of a reflection of the Parliament that we have in Canada. We have different positions having to deal with different jurisdictions.
A consultation as broad as can be would be the preferred route, and, in terms of the action plan itself, we certainly can support the idea that three years is far too long, and the deadline should be somewhat revised in order to have an action plan much quicker than the three years that we have now.
So I would say as broadly as you can, and as an example, we have 43 communities in Quebec and in Labrador, and with a diversity of situations from a geopolitical standpoint. I think the process needs to take into account that reality as well.
Senator Patterson: President Kotierk, [Indigenous language spoken].
In a December 2020 interview with Nunatsiaq News, which I noticed, ITK President Natan Obed stated: “There are many things that the land claims are silent on.”
However, as you know, the Nunavut Land Claims Agreement has provisions guaranteeing Inuit access to all rights and privileges extended to Indigenous peoples in Canada, as well as mechanisms to arbitrate or reopen the claim. As you know, the Nunavut Land Claims Agreement has already been amended many times. In June of 2019, also, Makivik signed an MOU with Canada on self-determination, and Inuit beneficiary organizations such as NTI have received significant direct funding for new programs and initiatives through the Inuit-Crown Partnership Committee tables, as you’ve mentioned and as you well know.
Since we’re already using the declaration as an interpretive tool in Canada, and given the fact that there are many existing mechanisms to challenge or reopen a land claim, what are the practical and immediate effects that you see for Inuit should this bill pass?
Ms. Kotierk: Qujannamik, senator, thank you for your question. I think, first and foremost, as Inuit, we are part of the Indigenous peoples across Canada, and we participate through the Inuit Circumpolar Council. We have been participating internationally in the discussions prior to the endorsement of UNDRIP to ensure that Inuit human rights are safeguarded and our Inuit communities are safeguarded. I think this provides a general mechanism in that it is applicable to the whole nation of Canada and, as such, would also be applicable to Inuit. And so it provides the domestic mechanism that would provide clarity about a declaration that has been endorsed internationally.
I recognize that there are no new rights that are being granted through this declaration, but the affirmation of it is important, and it allows for it to be available for all Indigenous peoples across Canada.
Senator Patterson: You mentioned the Indigenous human rights commission that the Inuit had strongly supported. Would you recommend an amendment be made by this committee to establish the Indigenous human rights commission?
Ms. Kotierk: Thank you for that question. Under clause 6(2)(b), it talks generally about how measures related to monitoring oversight can be resourced, but I think if there were a way to create concrete commitment to the establishment of an Indigenous human rights commission, that would be more effective in ensuring that there is evaluation and monitoring of reinforcement of the rights.
Senator Coyle: Thank you very much to both our witnesses, Chief Picard and Aluki Kotierk. Welcome back, President Kotierk. It is good to see you again in this context.
My questions build on what Senator Patterson was asking. It’s very much along the same line. Not all of us are conversant with the relationship between the Crown and the Inuit of Nunavut.
First, could you explain to us how you see the Nunavut Land Claims Agreement interacting with the new situation in Canada when and if Bill C-15 were to pass? I would like to understand the relationship between your existing agreement and this.
Second, could you go a little deeper on the practical differences you can see possibly coming from the implementation of this bill for the Inuit, particularly addressing some of the conditions that you have described that you find the Inuit people in Nunavut living under? Thank you.
Ms. Kotierk: Thank you for that question.
I will say that our Nunavut agreement is constitutionally protected, and I note that Senator Patterson had indicated that Natan Obed had made a comment that our agreements didn’t encompass everything. I think the benefits of going forward with Bill C-15 is that there are provisions in there that we know as Inuit that we have the right to pursue and have self-determination to pursue, but it would be really great if the Government of Canada also recognized that in our domestic legislation. I’m thinking particularly of UNDRIP Articles 13 and 14 where there is discussion about Indigenous languages — but every time I read it I see Inuit languages — as well as the ability to have Inuktut as the language of instruction in our education system. There is potential for expansion of the rights that we already have.
Senator Coyle: You mentioned the Inuit Circumpolar Council. I’m curious about whether any of the other countries where Inuit people are living are working in a similar way on legislation in their countries and whether there is support across those other countries.
Ms. Kotierk: Thank you for that question. Unfortunately, I’m not aware of state members and their legislation. I have been in communication recently with Alaska and Kalaallit Nunaat — Greenland — but I don’t know at what stage they are in terms of having legislation.
Senator Francis: My question is for Chief Picard. I understand you are in strong support of Bill C-262, which died on the Order Paper in the Senate, due to what one of your news releases called “despicable political partisanship.” Given that Bill C-15 is built upon Bill C-262, I’m having trouble understanding your position, especially after amendments were introduced in the House of Commons, which address many of the concerns that you raised there. The preamble, for example, now makes it clear that rights recognized in section 35 of the Constitution are not frozen, and no derogation will be possible under this bill.
Would you please clarify the position of the Assembly of First Nations Quebec-Labrador for us? Would you not agree that the federal government must ensure its laws, policies and programs must meet, if not surpass, the minimum human rights standards necessary for the promotion and protection of Indigenous peoples, nations and communities? This bill sets out a framework to begin this general process. Why continue with the status quo?
Mr. Picard: Thank you very much for your question, Senator Francis.
First, let me reiterate the same message we shared with the standing committee when we presented last March. We’re in full support of Bill C-15. Let me be very clear on that. But it shouldn’t mean that we need to adopt a bill in haste. It’s very clear to me that — and we made this clear in our brief to the standing committee, as much as we did in this case, in meeting with you as a standing committee of the Senate — they are important requirements in light of the geopolitical context across the country.
It was expressed earlier that there are different relationships that exist based on that geopolitical reality whereby some treaties have constitutional protection. As for those who rely on section 35, we know what the story is there. It is left to different interpretations. In some cases, as is the reality for my nation, we have been at the negotiating table for 40 years.
To me, this is where we need a stronger tool, like Bill C-15, which would certainly put pressure on provinces as well to join the party — let me say it that way — which is not the case at this point.
Senator MacDonald: I’ll go to Chief Picard with my question too. I want clarification on this, as I’m still a little confused.
In the brief to the House of Commons, Chief Picard, the AFNQL stated that it deplores the fact that the emergency has gone on too long with regard to the adoption of a bill to implement the declaration and that they are now being asked to support this bill under duress. The AFNQL fully supports the principles of the declaration but must oppose C-15 in its current form while helping to propose amendments that would make it more acceptable.
You’re not the only person who thinks it’s being rushed through. We have heard a lot of that. But you have told us since that the suggested amendments to the operative part of the bill were rejected and only amendments to the preamble were accepted, which has no force in law and is instead interpretive in nature.
Can you confirm that the AFNQL does not support Bill C-15 in its current form? Thank you.
Mr. Picard: Thank you very much, senator, for your question. Let me just say this: Why are so many people insisting on putting the onus on what you interpret to be the opposition of the bill by our First Nations? We just said that here, at this table. We said the same thing before the standing committee that supports the bill. But does that mean that we cannot call for improvements to the bill in order to meet the specific realities faced by First Nations across the country?
As I said, Quebec is not a player in terms of implementing the bill in this province. That alone should be an argument that is loud enough to support our position of strengthening the bill in order to be applicable within all the different realities we face, including that of Quebec.
Senator MacDonald: That’s fine. Thank you.
Senator Forest-Niesing: My first question is for Chief Picard. Thank you for being with us and for answering all our questions.
We have heard several people recommend that we not seek perfection because it can be the enemy of the good. In this context, considering the recommendations you made, which were not acted upon, you have made it very clear that you do not support the bill now. I would like to hear your thoughts on something. Given the recognition of the evolving interpretation now set out in the declaration, which is included in Bill C-15, do you think the improvements you would have liked to see will be possible after the bill is passed, through the means and mechanisms provided for in the bill?
Mr. Picard: Thank you very much for your question, senator. I would first like to point out the fact that we have heard many people express support for Bill C-15 as written, but we haven’t heard from many people who want to strengthen the spirit of the bill and enable groups like ours to have our say about proposals that could strengthen Bill C-15, not reduce its impact and implementation. I think we have to be very, very clear on that. We recognize the work of the House of Commons standing committee, and we acknowledge that there has been progress, so that the bill is now much closer to what we feel it should be. However, it is important to understand that clause 2(2) of the bill is just as important for reasons we explained in our brief and our presentation this morning. We just want the positions we are putting forward to be taken into consideration.
That said, we want to be an important participant in the process, but we also understand that there is a range of situations across the country and even within various jurisdictions, in the provinces and territories. We just heard our colleague from Nunavut, who talked about that unique situation. The same is true for First Nations. It is just as important that the process take into account the geopolitical reality, which is very diverse and has an impact on the very spirit of the Canadian Constitution.
Senator Forest-Niesing: Thank you, Chief Picard.
Senator Stewart Olsen: This is for President Kotierk. I want to follow up on Senator Patterson’s line of questioning, for clarification, because I don’t think you were able to finish your answer. Do you believe that if your suggested amendment were adopted it would bring the concrete commitments that you’re looking for? Would that make this whole exercise better?
Ms. Kotierk: Thank you for that question. I want to be clear that we support Bill C-15. I think it’s an improvement to what we currently have because it will be a tool. However, I think there could be more teeth, so to speak, if the action plan clearly outlined an evaluation and monitoring mechanism through a body, such as an Indigenous human rights commission. We know that’s being used in other legislation, and it allows for an independent, arms-length body to keep track of how things are being implemented. Thank you.
Senator Stewart Olsen: Thank you very much.
Senator Pate: Thank you to the witnesses. My question is for President Kotierk.
You have proposed a mechanism, but you also spoke in your presentation about the overrepresentation in prisons of Inuit and all Indigenous people. I’m curious as to how you would see the commission that you have suggested — or some other mechanism within the action plan that we’re discussing — addressing the systemic discrimination and racism that the UN declaration aims to effect. Additionally, how would you see that being brought into effect? What steps would you like to see in an action plan to address the overrepresentation, overcriminalization and incarceration of Inuit and other Indigenous peoples?
Ms. Kotierk: Thank you for that question.
The passing of Bill C-15 will be another tool that creates a lens through which we can look at the different issues that we face in our communities.
It’s no secret — and we live it every day — that systemic racism and barriers that we face on a daily basis in our communities result in the list of various social inequities that I was pointing out. By having a commission where we’re able to outline the human rights discrepancies that we face, even though we are also Canadian, it would be a very practical mechanism to bring light to it and, ultimately, action so that they can be addressed in a positive way. Thank you.
Senator Pate: Thank you.
Senator Hartling: Thank you, witnesses, for being with us today. I appreciate your different views.
I would like this question to go to Ms. Kotierk. Thank you very much for sharing your language. It’s beautiful to hear the language. I’m glad we had translation but just the rhythm is wonderful, so I appreciated that.
My question is around the condition of women and girls in your communities and some of the challenges there. If Bill C-15 were passed, how would it, if at all, impact women and girls in your communities? Do you see that with other groups you’re connected with, whether Indigenous, Inuit or other peoples? Can you talk about those issues a bit, please?
Ms. Kotierk: Thank you for that question. Certainly, it would have a positive impact on women and girls; any discussion on human rights and taking that lens would have a positive impact on women and girls.
Currently, we’re all living through a global pandemic. I know that we’re in an outbreak here in Iqaluit, but living through this has highlighted yet again the inequities in infrastructure and housing. Many of our communities don’t have shelters or safe homes, and many Inuit are going to bed hungry every night.
Creating a mechanism where we’re able to bring those to light is what I foresee as something being helpful with this legislation. Thank you.
Senator Hartling: I’m curious about the issue of domestic violence. In my part of the country, in Eastern Canada, we’re looking at the issue of women who have experienced domestic violence not being able to get help. How is that happening in your community? Is that a factor? Are they having difficulties reaching out and getting the help they need?
Ms. Kotierk: Thank you for that question.
Absolutely. With our overcrowded housing crisis, many people choose to remain with their partners, whether or not there is domestic violence, because there is no alternative of where they can go. Very recently, through the Indigenous Community Support Fund program, in reaction to COVID, we were able to take some of the resources that we received and transfer them to capital dollars to open up four different shelters across our territories. But that doesn’t meet our needs.
It also impacts whether people choose — even though it’s not a choice — to leave our territory to be in another jurisdiction where there might be more facilities available because there is no other housing alternative. Thank you.
Senator Hartling: Thank you.
Senator Anderson: Qujannamik. My question is for Ms. Kotierk, and it’s along similar lines to the last two questions.
You spoke of the disparity, inequity and existing situations within your region, and you described the declaration as a potential tool. If there were to be a failure to pass this bill, what would you see as the implications for your region? Also, do you have an alternative to an Indigenous human rights commissioner as a tool to advance a declaration, should it receive Royal Assent?
Ms. Kotierk: The most detrimental part of not passing this bill would be that it would reinforce our distrust of the government. I say this because, as Inuit rights-holding organizations, we are advocating on a daily basis for Inuit rights, and we will continue to do that, whether or not this bill passes.
We know that the United Nations Declaration on the Rights of Indigenous Peoples has been endorsed. We see this as the next step Canada needs to take to demonstrate that they truly recognize and respect the rights we already have.
So if it doesn’t pass, it would create that distrust. If it does pass, it demonstrates in a very positive and concrete way that there truly is no relationship more important than that with Indigenous peoples.
The Chair: Thank you, Ms. Kotierk.
Senator LaBoucane-Benson: This question is for Chief Picard.
I was thinking about your testimony earlier regarding not having the Doctrine of Discovery repudiated in the body of this bill, and I was also thinking about clause 5, which calls on the Canadian government, in consultation and cooperation with Indigenous people, to revise present and future bills to ensure that they align with the UNDRIP articles.
If the Doctrine of Discovery is not repudiated in Bill C-15, have you thought about other laws in Canada that need to specifically deal with the Doctrine of Discovery and terra nullius that you would like to see revised? If so, how would you go about consulting with the government to ensure that the Doctrine of Discovery is dealt with in other laws in Canada?
Mr. Picard: Thank you, senator, for the question.
I would like to pick up on our honourable colleague from Nunavut and her comments earlier about being in support of the bill while, at the same time, stating the fact that it needs more teeth. That’s no different from our position. We’re supporting the spirit of Bill C-15, but the bill needs to be strengthened. You provided a good example of that.
To me, we haven’t gone through all the federal laws that would need to be adjusted to the principles and the spirit of the UN declaration, but we would like to build upon the positive steps that have been taken so far. I refer to Bill C-91 and Bill C-92, as well as potential bills that will provide an acknowledgment of our jurisdiction in the area of health and also public safety.
Senator LaBoucane-Benson: Thank you so much, chief.
Mr. Picard: Let’s build upon the successes we have been able to achieve so far. To me, this is all part of the challenge when it comes to the action plan. I think the action plan will provide the kind of opportunity to look at the legislative framework as it stands today.
Senator LaBoucane-Benson: Thank you.
Senator Forest-Niesing: Let me follow up on that same train of thought but address specific concerns with respect to ongoing and future consultations that will be required, in particular having regard to the diversity that exists within Indigenous peoples.
The question I have for both witnesses is whether your organization has access to the resources it needs in order to participate in those discussions, and if not, what would be required?
Mr. Picard: My colleague can answer first, if she wishes.
Ms. Kotierk: Thank you for your question. Thank you, colleague.
I mentioned that through the Inuit-Crown Partnership Committee process, we have a working group specifically focused on legislative priorities. The United Nations Declaration on the Rights of Indigenous Peoples is part of that working group mandate, so at this time, Inuit do have the resources to be able to participate in providing feedback into these proposals.
And I would suspect that we will continue to participate in them in the implementation portion of this legislation. Thank you.
Mr. Picard: If I may, I’ll just add that implementation is key. To me, if I can make a parallel to Bill C-92, I understand the latest federal budget provides for some resources to support the work based on Bill C-92. That is certainly very positive, but it doesn’t stop there. You need partners at the table. When it comes to Bill C-92, we know that Quebec is challenging that federal bill.
You can have all the resources you need and want, but you also have to ensure that all the right partners are at the table, which is certainly far from being reality when it comes to Bill C-92.
Senator Forest-Niesing: Based on that, just to follow up, what additional steps would be required in that regard, having regard to the experience of Bill C-92, if Bill C-15 was implemented?
Mr. Picard: Again, I would refer back to the action plan. I think the action plan would be the basis for what is required as adequate resources. Certainly the challenge before us in terms of what Bill C-15 intends and as stated by many witnesses before, this is the work of one generation, and to me, it calls for a complete overhaul of how Canada has been doing business when it comes to Indigenous issues as a whole. So I would say it is going to require all of the resources that are needed, to put it, I guess, bluntly.
Senator Francis: This question is for both witnesses. Would you agree that the framework for implementation put forward in this bill would have an impact on national reconciliation efforts and progress that is urgently needed?
Do you think the passage of the bill could help, especially by challenging colonial relationships and associated structures, and if so, how? President Kotierk, would you like to begin?
Ms. Kotierk: Thank you for that question. First and foremost, the foundation of passing this bill is that it would show respect for the Indigenous rights that we already have. I think that in itself speaks volumes and works towards reconciliation in the sense that in a form of respect, we’re working as equals. Inuit would be working with the Crown in that spirit of respect. Thank you.
Mr. Picard: I don’t really have much to add to the previous comment, but I would say let’s take the example of our historic relationship as nations. To me, when we were able to create and strengthen those historic alliances, that’s when the country, as a whole, made some progress. That is the opportunity afforded to us or presented to us if Bill C-15 has what it needs in order to provide that comfort zone for all Indigenous nations in this country. To me, this is a great opportunity to finally put action into this notion of reconciliation that has been on the lips of so many people for the past five to seven years.
Senator Francis: Thank you both.
The Chair: That ends our questions. I wish to thank our guests, Chief Ghislain Picard from the Assembly of First Nations of Quebec and Labrador and President Aluki Kotierk from Nunavut Tunngavik Incorporated.
I would like to welcome our witnesses for this afternoon. Appearing as individuals, we have Dr. Tom Flanagan, Professor, Emeritus of Political Science, University of Calgary; Brenda Gunn, Professor, Faculty of Law, University of Manitoba; and Dr. Val Napoleon, Director, JD/JID program, Associate Professor, Law Foundation Chair of Indigenous Justice and Governance, University of Victoria. Welcome to our guests.
Dr. Flanagan, Ms. Gunn and Dr. Napoleon will each provide opening remarks of approximately six minutes each, which will be followed by a question-and-answer session with the senators for 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 are asked to use the raised-hand feature on Zoom to signal this to the clerk. This will be acknowledged in the Zoom chat. Please note that committee members will be given priority on the list of questioners. Any written follow-ups to questions 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 of speaking time for both the witnesses’ introductory remarks and senators’ question-and-answer time. I will do a 10-second visual countdown using both hands. When it reaches zero, I will give you the zero hand, and then I will advise that time has expired.
Now, I would like to invite our witnesses to provide their opening remarks. Let’s begin with Dr. Tom Flanagan.
Tom Flanagan, Professor, Emeritus of Political Science, University of Calgary, as an individual: Thank you for inviting me to appear before your committee. I would like to say a few words about section 32.2 of the United Nations Declaration on the Rights of Indigenous Peoples, which I will call UNDRIP — even though it’s not very elegant. My interest is in the phrase “free, prior and informed consent,” which is usually known as FPIC — also not elegant but economical.
Bill C-15 does not immediately legislate FPIC or UNDRIP. However, it states that the government must “take all measures necessary to ensure that the laws of Canada are consistent with the . . . Declaration.” Any citizen reading Bill C-15 will conclude that the plan is to legislate UNDRIP and FPIC in Canada sooner or later.
Canada already has an elaborate body of jurisprudence regarding consultation, and it has been decided within that jurisprudence that the right to be consulted is not a veto power. That result would be upset by layering FPIC over it, for FPIC is nothing if not a veto. As former senator Murray Sinclair said in the Senate debate over Bill C-262, the predecessor of Bill C-15:
Free, prior and informed consent is a very simple concept. And that is, before you affect my land, you need to talk to me, and you need to have my permission.
A requirement to obtain permission amounts to the same thing as a veto power.
The difficulties become extreme when one considers linear projects such as pipelines, highways, railways and power lines, which may cross the traditional territories of dozens of First Nations.
Under the FPIC doctrine, would each be able to exercise a right of veto over construction on its traditional territory? In the larger Canadian society, the limits of this type are resolved by expropriation with fair compensation. The equivalent in Aboriginal law is the doctrine of justified infringement of Aboriginal rights and title, which the courts have propounded on numerous occasions. Legislating FPIC would threaten to overturn the doctrine of infringement with incalculable consequences for necessary infrastructure.
The real-world consequences of legislating FPIC were put on display in early 2020 in the dispute over the Coastal GasLink pipeline. The project was supported by the elected governments of all 20 First Nations affected by it, but it was opposed by one faction of the Wet’suwet’en nation, led by some of the hereditary chiefs. Opponents of Coastal GasLink cited British Columbia Bill 41, whose wording was similar to that of Bill C-15. Within a few months of passage of Bill 41, opposition to Coastal GasLink had spiralled into nationwide blockades of highways and railroads, especially the CN mainline.
Senators should not think that the effects are limited to the obstruction of oil and gas pipelines. If Canada is to move toward the current government’s goal of net-zero carbon emissions by 2050, vast new construction of dams, wind farms and solar farms will be required. Many of these installations will be in remote areas and they will require new power lines to tie into the electrical grid. They will also require new service roads for construction and maintenance. If Parliament chooses to go ahead with Bill C-15, it would be wise to include an amendment specifying that FPIC will not supersede Canada’s evolved jurisprudence on the duty to consult and accommodate Indigenous peoples regarding resource development affecting their traditional territories.
I have made these remarks brief, but I have submitted a written document to the committee, which cites a longer paper that I have written on UNDRIP as published last year. If anybody is interested in my views, they can go further into what I have written.
The Chair: Thank you, Dr. Flanagan, for your submission. I would like to go to Professor Gunn.
Brenda Gunn, Professor, Faculty of Law, University of Manitoba, as an individual: [Indigenous language spoken]. Hello, my name is Brenda Gunn. I live in Winnipeg, and my family is from St. Andrews.
Today, I’m speaking from Treaty 1 territory and the homeland of the Métis Nation, my home territory. I’m Métis and a professor of law at the University of Manitoba. I’ve worked in both international and constitutional law, including the application of international human rights law in Canada, for almost 20 years now.
I have developed a handbook on implementing the UN declaration and I’ve done presentations all over the country and internationally about what the UN declaration means and how it should be implemented domestically.
I want to thank you for the invitation to be here today, and I am honoured to sit beside Dr. Val Napoleon today. However, I must admit that it’s difficult to sit beside someone who doesn’t think I should exist or have any rights.
I want to focus my talk today on why I support Bill C-15. The bill provides greater certainty for the application of the UN declaration in Canadian law and addresses some of the hesitancy that judges have in regard to not understanding how international law applies. The action plan provides space for negotiations and discussions on how to implement rights, which allows for us to address the specific differences among Indigenous peoples. The UN declaration and Bill C-15 build up from existing rights, and the annual reporting provides a level of accountability and transparency for implementing the UN declaration. Finally, it is an important step toward reconciliation and toward a fairer and more just Canada for all.
In Canada, we need to stop believing in mythologies that recognizing the rights of Indigenous peoples is somehow going to tear Canada apart. We have to accept that the only way to reconcile is to recognize the rights of Indigenous peoples and shift the relationship from a colonial one to one based on justice, democracy, respect for human rights, non-discrimination and good faith. This is what is explained in the UN declaration’s preamble.
I want to make a couple of points on the substance of the declaration. The UN declaration includes economic, social and cultural rights in areas such as language rights, education, health care, housing and economic development — all of which are critical to the exercise of civil and political rights.
There is no hierarchy of human rights. A national action plan must ensure that economic, social and cultural rights receive the same level of attention and consideration as political and civil rights. This will be critical to ensuring that Indigenous women equally benefit from the implementation of the UN declaration.
There is so much within the UN declaration, and implementing it will do so much for Indigenous peoples and for Canada. It is unfortunate that people constantly focus on the right to participate in decision-making and free, prior and informed consent as a way to distract us from the many gains that can be made through the declaration’s implementation.
Given the preoccupation many people have and the idea that there is uncertainty or confusion about what FPIC is, I thought I would share some of the study on FPIC by the UN Expert Mechanism on the Rights of Indigenous Peoples, or EMRIP.
In the study, they identify three underlying rationales of FPIC: to restore Indigenous peoples’ control over their land and resources; to restore Indigenous peoples’ cultural integrity, pride and self-esteem; and to redress the power imbalance between Indigenous peoples and states, with a view to forging new partnerships based on rights and mutual respect between the parties.
EMRIP notes that free, prior and informed consent operates fundamentally as a safeguard for the collective rights of Indigenous peoples. The report further articulates that states’ obligations to consult with Indigenous peoples should consist of a qualitative process of dialogue and negotiation with consent as the objective. The declaration does not envision a single moment or action but a process of dialogue and negotiation over the course of a project, from planning to implementation and follow-up.
The declaration uses the combined terms of “consult” and “cooperate” to denote the right of Indigenous peoples to influence the outcome of decision-making processes that affect them — not a mere right to be involved in such processes or to have their views heard.
To further emphasize this point, the UN declaration is not the only human rights instrument that recognizes Indigenous peoples’ right to participate in decision making and FPIC. FPIC is grounded in such rights as the International Covenant On Civil and Political Rights — the right to participate in public affairs — and is adapted for Indigenous peoples’ experiences.
Finally, I want to just highlight a couple of the findings of the EMRIP report highlighting two key objectives that I think are really relevant in Canada. First, an objective of FPIC is to correct the de jure and de facto exclusion of Indigenous peoples from public life or decision making owing to many factors, including prejudiced views against them, a low level of education, difficulties in obtaining citizenship or identification documents and non-participation in electoral processes and political institutions.
Second, an objective is to revitalize and restore Indigenous peoples’ own decision-making and representative institutions.
The Chair: Professor Gunn, the time has expired.
Ms. Gunn: Thank you. Can I have 30 seconds to wrap up here?
The Chair: Maybe in the questioning you can get that 30 seconds.
Ms. Gunn: Thank you.
Dr. Val Napoleon, Director, JD-JID program, Associate Professor, Law Foundation, Chair of Indigenous Justice and Governance, University of Victoria, as an individual: Good morning. I would like to begin with two short quotes. Doris Lessing said:
To remember this history is not for the sake of keeping alive the memories of old tyrannies, but to recognize present tyranny, for these patterns are in us still. It would be strange if they were not.
It is these patterns that I believe we should study, become conscious of, and recognize as they emerge in us and in the societies we live in.
The second quote is from The Guardian last month, and it says, “Every legal system is as flawed and institutionally skewed as the country in which it exists.”
I have long advocated that law is both constituting and constituted by the ever-present relations of power that comprise our worlds. Right now, in Canada, as we deliberate Bill C-15, we have an amazing opportunity to begin to change the colonial pattern of relationships between Canada and Indigenous peoples. And we have an exciting opportunity to begin creating a new era for Canada and for Indigenous law.
This is astonishing and it should be celebrated, even if we have not yet arrived. We are continuing to bring multijuridicalism into reality. The vision and hope for this work to date has been borne by Indigenous peoples through decades of pragmatic and relentless lobbying, research, litigation, negotiation, education and activism.
I just want to take up a couple of key points. First, serious support for Indigenous legal orders and law enables Indigenous peoples to collaboratively develop principled and reasoned legal responses to pressing economic and political issues.
Second, space for Indigenous legal orders and law enables Indigenous consent to be informed by the legality of Indigenous legal processes.
Third, engagement with Indigenous legal orders and law enables Indigenous peoples to negotiate on the basis of their own legitimacies. This means that Indigenous peoples can negotiate with third parties and Canada in a way that does not automatically make Canadian law the default in a way that continually undermines Indigenous law.
Fourth, Indigenous laws of consent are essential to ensuring that expressions and instruments of consent are valid, legitimate, stable and enduring. Bill C-15 can support and advance this stability for Canada and for Indigenous peoples.
Fifth, on the balancing issue, there is an important provision in Article 46(3) that requires that consent:
. . . be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.
Those are the interpretive bounds.
Sixth, consent is an act of reason and deliberation. It is an act of an active and deliberative citizenry, which is the goal of rebuilding Indigenous law in Canada and elsewhere in the world.
From an Indigenous legal perspective, we need to think about how consent is constructed in Indigenous law. What makes it legal according to that law? What are the necessary standards of legality for consent according to Indigenous law?
The real problem to date has been government inactivity and continual denial of Indigenous law and jurisdictions. It’s also this inactivity and denial that are the root cause of the uncertainty that is so feared. What is needed is an intelligible way to reorganize our respective legal regimes so there may be proper acknowledgment, recognition and space for Indigenous governments and legal orders. This is as opposed to what have been incremental, divisive and often chaotic adversarial processes in the courts.
One of the stumbling blocks is that for many people, Indigenous laws and the attendant legal institutions through which that law operates are still invisible. Consent is a collective legal and political construct that arises from systems of law, including Indigenous law. As a legal construct, consent creates obligations, and all legal systems recognize, create, vary and enforce obligations. Obligations are central to the social role of law. Being able to explain obligations is necessary to understand law’s authority.
Another aspect to Bill C-15 concerns access to justice and the extent to which people believe that they matter to the legal institutions —
The Chair: I’m sorry, Doctor Napoleon, time has expired. Thank you very much. I would like to open the floor for questions.
Senator LaBoucane-Benson: Thank you so much to our witnesses today. This question is for Professor Napoleon. I’m taking a risk because I do not understand Indigenous legal traditions as you do. So the question is going to be very basic and beginner-like.
How do the UNDRIP articles make a larger space for Indigenous legal traditions specifically? Can you give a concrete example of how Indigenous legal traditions can inform discussions and negotiations?
Dr. Napoleon: Thank you. The starting place is that every part of Canada includes an Indigenous legal order. In every geographic space in Canada there is more than one system of law. Taking that up means focusing or asking the question of an Indigenous legal order to determine its legality or illegality, then going through the legal processes of principled legal reasoning within that legal order to determine consultation, inclusiveness and fairness, as well as substantive application of law in that legal order.
Then that process informs the relationship with Canada. That’s the opportunity that Bill C-15 supports, but it’s going to take a lot of work. It’s work that we’re already doing — that Indigenous peoples are already doing in the substantive rearticulation of Indigenous law and legal processes. What I’m seeing is an opportunity for Canada to be actively and truly multijuridical so that legal principles can guide how Indigenous peoples then interact with Canada, but in a supported way because there has been an undermining of those systems. There have been breakdowns, gaps and distortions, so there is a rebuilding that is necessary. Does that help?
Senator LaBoucane-Benson: It does, thank you, Professor Napoleon. It’s nice to see you again.
Senator Patterson: Professor Gunn, in the human rights glossary provided by Canadian Heritage, a “declaration” is defined as this:
In UN usage, a declaration is a statement recognizing a universally valid principle. Unlike a convention, a declaration is a statement of principle rather than an agreement by which countries bind themselves under international law. . . .
I think it’s also important to note that the declaration is already being used as an interpretive tool in Canadian law.
Professor Gunn, in your field of practice, which is the intersection of international law and Indigenous rights, as I understand it, can you confirm that Canadian Heritage’s definition of the status of a declaration as a statement of principle rather than as something binding in international law is correct?
Ms. Gunn: Thank you for the question, senator. I think generally the statement reflects declarations, but it’s not fulsome in how we should think about the UN declaration.
As I demonstrated in one example, the rights in the UN declaration are clearly building upon customary international law and human rights contained in treaties, but it really helps us understand how general human rights apply in this specific Indigenous context.
So while, yes, a declaration is a statement of principles, perhaps the UN declaration on the rights contained are grounded in binding obligations that Canada has under various human rights treaties.
Furthermore, we have to remember that Canada, as a member of the United Nations in good standing, must uphold all of its human rights obligations. Since the United Nations Declaration on the Rights of Indigenous Peoples is a human rights instrument, it is also part of Canada’s obligations to the international world.
Senator Patterson: Thank you. I asked this morning about the doctrine of legal precedent. In your opinion, would Bill C-15 overrule the precedents of 150 years or so of Canadian main jurisprudence that National Chief Bellegarde told us on Friday has often been favourable to Indigenous rights holders?
Ms. Gunn: I’m not exactly sure what you’re meaning generally. It’s a very broad statement. Does legislation overrule precedents? It would depend on which precedents in relation. What we want to think about is whether or not, for example, our interpretation of section 35 accords with now-recognized international human rights standards.
The Chair: Sorry, Professor Gunn, your time has expired. I’m sorry.
Senator Coyle: Thank you very much to all our witnesses.
My question is for Dr. Napoleon. Welcome back to our committee. I’m going to quote former Senator Sinclair, which is different from what we just heard in Dr. Flanagan’s testimony. Senator Sinclair said:
. . . we have “. . . a growing body of case law here in Canada which has very clearly indicated that free, prior and informed consent does not, in fact, amount to a veto.”
That was a direct quote from former Senator Sinclair in his testimony on Bill C-262.
We have heard from Dr. Flanagan is that with Bill C-15 — and he would see that as something that would legislate FPIC — that would then overturn what he referred to as the doctrine of infringement of Aboriginal rights and title. Would it in fact overturn it? Would that be such a bad thing? Would that be a good thing? Do we need to be concerned about that? I’m not a lawyer, and I’m looking to you for your opinion on that.
Dr. Napoleon: From my perspective, in a legal regime in a country around all of the matters that are part of law and that we govern through law, legislation jurisprudence usually acts to balance to inform and to shift over time.
One of my perspectives on this is that the fear of veto derives from a very impoverished view of the law. It derives from the worst possible perception of how law operates. If we think about what the standards are by which our law operates in Canada and the legalities that make it legal, those standards will continue through all of its interpretations through the work on matters that we take to the law. So the idea of a veto, that’s not how the application of law works. That is not how the courts work.
There are balancing principled legal processes through which legitimacy of a decision is reached on a particular matter. Then the next case will require another principled process on that matter that is before it. So flattening that process and to say that it will create a veto is problematic.
Senator Francis: This question is for Dr. Napoleon and Dr. Gunn. Would you agree that the Supreme Court of Canada’s interpretation of section 35(1) of the Constitution Act has failed to reset the colonial relationship between Indigenous peoples and Canada, especially by failing to understand Indigenous peoples’ rights according to their own legal traditions? If so, could the framework proposed in this bill to bring our domestic laws and policies into alignment with the United Nations Declaration on the Rights of Indigenous Peoples help address this disconnect?
Dr. Napoleon: From my perspective, the bill is another step. It’s another collection of ideas that support the aspirations of our country. So all legal systems have aspirations toward which it operates. Indigenous law has aspirations toward which it operates. Each Indigenous legal order has that.
In looking at the jurisprudence and at how that plays out, there will be variation depending upon what has been before the court, what the context is and so on, because law is not separate from those political relationships that surround it.
I don’t know if I would agree with such an overall statement. I would say that there have been aspirations that have been attempted and people will continue. Indigenous peoples have expended years and years of effort for various recognitions, including with section 35 and with everything else in the rebuilding of Indigenous law. So I think it’s complementary. It’s not one or the other.
Senator Francis: Thank you. Dr. Gunn?
Ms. Gunn: I think generally there have been many challenges with how the court has interpreted section 35. If we take a robust approach to implementing the UN declaration, it gives us an opportunity to reconsider the scope of section 35 to make sure that we’re meeting those ideals.
There is a reason why the TRC referred to the UN declaration as the framework for reconciliation, and that is because of the way in which it can bring us together and help reshape that relationship away from the colonial-dominant narrative to one based on new principles that I articulated — justice, democracy, respect for human rights, equality and non-discrimination.
Senator Francis: Thank you, both.
Senator Stewart Olsen: My question is for Dr. Napoleon. In your response to Senator LaBoucane-Benson, you stated that you see Bill C-15 as making Canada truly multijuridical. However, on Friday, Minister Lametti told us 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. . . .
Could you please tell me how this fits with your comments?
Dr. Napoleon: It is the case that federalism and provincial — the structure of our country is not going to go anywhere. It is also the case that Indigenous law has not gone anywhere in Canada. It has been undermined. There are gaps and so on as I mentioned. So Indigenous laws have continued to inform Indigenous peoples through negotiations with the government, through litigation, through all of the different means that Indigenous peoples have interacted with Canada.
We can see lower court decisions where judges are now drawing on Indigenous law, not as forms of evidence or fact, but as sources of principled legal reasoning. I’ve had discussions, for instance, with judges in Australia about the same kind of thing, that they are a source for thinking and for problem-solving. That is going to continue. That’s going to continue because we’re researching, we are working in partnership with communities, people are doing this across the country and so that is multijuridicalism. The extent to which those relationships are productive and constructive and allow deliberation and full engagement with Indigenous law as law, that’s up to us, that’s the challenge for all of us to do that work and to make sure we understand what that means.
Senator Stewart Olsen: Thank you, doctor. Do I have any time at all? I want to put something to Dr. Flanagan. Is it not more of a cautionary approach, as we see new legislation that we think may be flawed, to perhaps include an amendment that would reaffirm Canadian law and jurisprudence as it stands?
Dr. Flanagan: Well, yes, I would agree with you, senator. We are getting into new territory here with Bill C-15. The Government of Canada adopted UNDRIP in 2010 as an aspirational document, but this is clearly a step towards revising legislation to accord with UNDRIP and we don’t know where that process will go. I think it would be very useful to lay down some markers at the beginning to preserve the certainty that comes —
The Chair: I’m sorry, Dr. Flanagan. Your time has expired.
Senator Pate: My question is not so much a question but a request to both Professor Gunn and Dr. Napoleon.
In the passage of this legislation, are there observations and/or recommendations that you would suggest this committee make to the government as we move forward with Bill C-15 in order to really breathe life into the provisions and the ideas you have articulated?
Ms. Gunn: I wanted to say this is maybe my fourth time appearing before committee on the same legislation. I think it’s really important that we move and we need to start moving quickly. It has taken us a long time to get here. We don’t want to slow things down. I’m concerned about thinking about additional amendments that might delay the process. We need to start moving on.
I do think that as we move forward toward implementing the UN declaration in Canada that continuing to engage with Indigenous peoples through the process of developing and implementing the national action plan is really important, and it is what is envisioned in that idea of free, prior and informed consent. Not that the government consulted at this moment in time, but actually through the whole process. I would encourage the government to continue to engage with Indigenous rights holders in the process.
Dr. Napoleon: My only addition would be that part of taking this bill up as something that will continue the journey that we are on in Canada is an exciting era for our country: support of Indigenous peoples and the support to rebuild Indigenous law and legal orders, and to have more Indigenous law degree programs, for instance, like the one I teach that we developed and teach here in Victoria. We have people. There are people and it is possible to think and work across legal orders to draw a doctrine from more than one legal order to solve a problem. You have examples of that in Quebec with civil law and common law.
Making that space and providing that support would be a terrific addition.
Senator Pate: Thank you very much.
Senator MacDonald: My question is for Professor Flanagan.
Professor, there has been a lot of disagreement about what consent means, about whose consent must be provided in different circumstances and about the extent to which the bill binds the Crown. Do you believe that this means that prolonged litigation is inevitable in relation to Bill C-15?
Dr. Flanagan: My fear is that the passage of Bill C-15 will unleash new challenges to what has emerged as a recently settled doctrine about consultation. The most recent decision by the Federal Court of Appeal was pretty clear that consultation has to be robust, but at the end of the day the right to be consulted is not a right of veto. All these achievements come into question again with new legislation and we start the uncertainty all over again.
Senator MacDonald: Do you believe we’re looking at years or even decades of litigation?
Dr. Flanagan: Yes, for sure. It took about 15 years to clarify the decisions rendered by the Supreme Court of Canada in Haida Nation and Taku River in 2004 — actually more than 15 years. I think it would probably go on for a similar period of time if we overlay FPIC on top of evolved jurisprudence.
Senator Forest-Niesing: My question is for Professor Gunn.
We’re hearing you and many others encourage senators to forego the strong desire to propose amendments in order to give way to the necessary passing of this long-awaited legislation. I do understand that. We’ve heard from the ITK that they are advocating for the legislation to include the creation of an independent Indigenous human rights commission. Given your own expertise in the area of international human rights, what do you see in the existing legislation without such an amendment to be a process by which human rights oversight can occur?
Ms. Gunn: Thank you, senator, for the question. I think the answer is quite straightforward: enforceability of rights should be part of the national action plan. This legislation really is the framework to create a framework and a plan to implement. So the issue that the ITK is raising is a really important one: How do we enforce rights? We know the courts are out there, that’s an option, but it perhaps is not the option that we want to leave as first or the best. I would expect that during the national action plan that would be one of the considerations is enforceability of rights. The discussion could occur there on an Indigenous human rights commission.
Senator Forest-Niesing: Thank you. I’d like to offer you, Professor Gunn, the time I have remaining to provide the last 30 seconds of your earlier comment, if you wish.
Ms. Gunn: Thank you. I wanted to remind senators that Bill C-15 is really based off of the private member’s Bill C-262, which was drafted by a Cree parliamentarian and that there was extensive engagement done on Bill C-262, including former member Saganash’s coast-to-coast-to-coast tour. When Bill C-262 died in the Senate, it was only after the extensive lobbying of Indigenous people that Bill C-15 came through. Again, there was consultation in the earlier iteration of this bill. There are lots of opportunities for engagement of Indigenous peoples moving forward, and I feel that time is of the essence here. I don’t want to undercut the ability of the Senate to make amendments, but I do feel that there is a really pressing time limit to the discussion, and I don’t want to lose the momentum we have right now. Thank you.
Senator Tannas: I want to thank the witnesses for being with us today.
I am listening to this having zero legal background and not very much inclination to the esoteric. I’m more of a doer, and I don’t mean that in any disrespectful way; let me be clear. I find when I’m listening to some of these things that I’m going back to some practical questions.
My question, while we’ve got you, Dr. Napoleon, is around Indigenous law. Maybe you can help me. The reality is we have hundreds of communities. We have somewhere between 50 and 75 distinct nations of Indigenous people. We have the further complication of 50% or more of the people of those nations not living on their lands; they are living in cities and elsewhere. With that reality, I’m wondering if you could help me. I’m hoping that maybe you’ll tell me that there are some common principles that you think would come out of Indigenous law. Or would we have 70, 80 or 100 Indigenous law codes that, as someone who is looking to try and partner and develop jobs and do things in the country, they’d need to become expert in them? That’s what is blowing my mind at the moment. I wonder if you could help.
Dr. Napoleon: Thank you for that question. It’s an important one. You are right; we have about 60 Indigenous legal orders in Canada, and those have been fragmented into the smaller entities known as bands that are geographically fixed within their larger territories.
The legal orders that I’m talking about are at the societal level. The Gitxsan legal order, for instance, has six bands within it, but the Gitxsan territories are over 58,000 square miles. The efficacy of the law operates on that larger scale insofar as systems of accountability and so on.
We are doing this work now. We’ve been working for decades with Indigenous peoples to substantively articulate areas of law on water, on lands and resources and on Indigenous human rights, that is, Indigenous human rights principles from an Indigenous perspective. We are doing the work so we can extrapolate.
Senator Tannas: Thank you.
The Chair: We will now begin the second round. I would like to welcome Senator Pat Duncan from the Yukon, who has joined us.
Senator LaBoucane-Benson: This question is for Ms. Gunn.
You said in the committee in the other place that Bill C-15 includes “. . . important accountability measures to ensure Parliament puts words into action.” I thought that was a great quote. Can you expand on that? Where is the accountability? How do you see that coming down, and how does that benefit Indigenous peoples?
Ms. Gunn: Thank you. I think the periodic reporting is critical. That provides the accountability and transparency, importantly, because, as someone who has been involved in this work for a while now, it’s not always easy to know what the government is doing to implement any of their various obligations. By having an opportunity for the government to report, it means that there is information that becomes public that’s available for people to review. It means there is time for questions that can be raised with the government. That happens in that public forum where the government then gets to account for what they are doing. We are seeing this happen to a certain degree in the British Columbia process, for example.
I also think working with Indigenous peoples to engage the national action plan is also part of that accountability of working with Indigenous peoples.
Senator LaBoucane-Benson: Great. In the action plan, if you were going to advise this government, how would you advise them to embed and bake that accountability into that plan?
Ms. Gunn: I think transparency is included in accountability, so you have to know what is happening. These processes need to be open to the public. They need to be engaged. People just have to know what is going on, and there have to be opportunities to revisit. It can’t just be a static process. It will need to continue to evolve so that Indigenous peoples are engaged throughout the whole process.
Senator LaBoucane-Benson: That’s awesome. Thank you very much.
Senator Patterson: Professor Gunn, you discussed the consultations undertaken on Bill C-262, but, of course, this is a different bill. We heard from Grand Chief Abram, from Ontario, that they reject this bill. We also heard from other Indigenous stakeholders, including this morning, that we need changes to give this bill more teeth. Should we not look for ways to listen to rights holders to strengthen this bill in accordance with their input?
Ms. Gunn: Thank you for the question. It’s a really challenging one. I think it is important to remember that Indigenous peoples are not of one mind and are not all the same and that there are going to be diversities in approaches and experiences. I simply wanted to highlight for this committee that Bill C-15 didn’t appear out of thin air; it was not the brainchild of the Liberal government. It actually has roots in being drafted by Indigenous peoples.
Some changes were made between Bill C-262 and Bill C-15 that were the result of engaging with mostly national Indigenous organizations. We see a slightly longer preamble. We also see some text added after the committee to address some of the concerns.
Of course, we want to ensure that Canada continues to engage Indigenous peoples moving forward and really engages with those rights holders and continues to make space for Indigenous peoples to identify for themselves who are the appropriate representative institutions. This is one of the principles and rights that are contained within the UN declaration. That is why moving forward to implement the UN declaration can help us create a better framework for consultation and for engaging Indigenous peoples in decision-making processes going forward.
Senator Patterson: Are you concerned that the improvements you described in the committee were rejected in the operative parts of the bill and instead shunted to the less significant preamble in law?
Ms. Gunn: Honestly, my primary concern at this point is the timeliness. I’m really concerned that Bill C-262 died in the Senate last time. I’m concerned that, since I last appeared before this committee, I have managed to have a daughter who is now two years old. I’m having a lot of the same conversations that I did back then. So, yes, I’m always concerned that this government continues to engage Indigenous peoples, that they have a real say on the articulation of their rights, but I also want to make sure that we continue to move forward and work to realize the rights of Indigenous peoples.
The Chair: Thank you.
Senator Coyle: This question is for any one of our witnesses. The issue of trust came out last week in our early sessions of this committee. I know you are political scientists and legal scholars, but one of the things that came out was the relationship. This is a bill that is also about relationships between Indigenous Canadians and other Canadians, and you have made the point about reconciliation, and how critical it is to reconciliation.
What do you think would happen to that trust factor, which I assume most of us want to build, if Bill C-15 did not pass now versus if it did pass now? Could you speak to trust?
Dr. Napoleon: Trust has to be created by actualities in our lives. People have to believe that they matter to the legal system or they don’t see themselves as rights bearers, or they don’t turn to those legal systems to deal with harms and injuries. When that breaks down, you have social fragmentation, which is going on in the rest of the world. Indigenous peoples have to believe that they matter not just to the institutions of law in Canada, but they have to matter to their own law and institutions as well. That’s a matter of ultimate trust of citizenries in the world around us, in our ability to create meaning and participate as full citizens in our world.
We need to be able to have those conversations within Indigenous peoples and with other Canadians. Other Canadians need to talk about the same things we do in our workshops about what makes law, law? Whose voices should be heard? What’s important insofar as the work that people want to go on? We need that kind of engaged public intellectualism for Indigenous peoples as well as for the rest of Canada.
Senator Coyle: Does Bill C-15 facilitate that?
Dr. Napoleon: I think Bill C-15 is a step in the journey toward allowing deliberate recognition of Indigenous peoples and Indigenous political, legal and economic orderings that we can engage in Canada from that basis.
Senator Francis: This question is for Mr. Flanagan. In your opinion, do you view Indigenous peoples as the First Peoples to inhabit this land, and do you believe this gives Indigenous peoples inherent rights and title to the land?
Dr. Flanagan: As to the first part of the question, yes. They were obviously the First Peoples to inhabit the land.
As to what rights and title they derive from that, that is a complicated issue which has been addressed by our legislators, Constitution writers and courts for as long as Canada has existed. I wouldn’t want to give a simple answer to that. I would say, yes, they have rights and titles which are expounded by our political and legal authorities over time.
Senator Francis: Thank you.
Senator Patterson: Professor Gunn, in your response to my earlier question, you talked about Bill C-15 having binding effects on the Crown. That really puzzled me because I asked a question about whether this bill binds the Crown to anything and was told clearly by officials that the bill simply binds the government to making an action plan. Can you help me clarify these differing views? Thank you.
Ms. Gunn: Thank you, senator. I’m happy to try to clarify. I must admit I’m not exactly sure where the disconnect is happening, but I believe what I was speaking to was your question about the role of declarations in international law and the definition that was provided.
The reference that I was making was that regarding the rights in the UN declaration, in Article 3, for example, which speaks of the rights of Indigenous peoples to self-determination. If you look at the phrasing of Article 3, it identically mirrors the phrasing of common Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
What I was trying to suggest was that the UN declaration and the rights articulated in it are grounded in and building upon existing human rights treaties that Canada does have binding obligations under.
The Chair: Thank you. That exhausts our questions. I wish to thank Dr. Tom Flanagan, Professor Brenda Gunn and Dr. Val Napoleon for appearing here this afternoon.
I would like to welcome our witnesses for this afternoon: Chief Steve Smith from the Champagne and Aishihik First Nations; Alexa McClaren, Barrister and Solicitor from the Champagne and Aishihik First Nations; and as individuals, I’d like to welcome Jason T. Madden, Lawyer and Managing Partner, Pape Salter Teillet LLP; and Dr. Pamela Palmater, Chair in Indigenous Governance, Ryerson University.
Chief Smith, Mr. Madden and Dr. Palmater will each 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 will be asked by the sponsor of the bill, Senator Patti LaBoucane-Benson, and the second question will be asked by the critic of the bill, Senator Dennis Patterson. If other senators have questions, they are asked to use the raised-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-ups to questions should be submitted to the committee clerk no later than May 30, 2021.
Committee staff will advise me 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 using my hands. When I reach zero, I’ll advise that the time has been allocated.
Now I wish to invite Chief Smith, Mr. Madden and Dr. Palmater to begin their opening remarks.
Steve Smith, Chief, Champagne and Aishihik First Nations: [Indigenous language spoken] — from Champagne and Aishihik First Nations Traditional Territory. Thank you to the honourable people who are taking the opportunity to listen to the words I have to speak. [Indigenous language spoken].
I am a Champagne and Aishihik First Nations member. [Indigenous language spoken]. The Champagne and Aishihik First Nations people signed a final agreement with the Government of Canada and the Government of the Yukon in 1993 based on the Umbrella Final Agreement, a framework for negotiating individual final agreements in the Yukon.
The Champagne and Aishihik First Nations Final Agreement is a constitutionally protected modern treaty and the Champagne and Aishihik First Nations Self-Government Agreement is a self-governing Yukon First Nation. We have a self-government agreement with the Yukon and Canada, which defines some self-government powers, including law-making powers, powers over taxation, and programs and services. We are one of 11 Yukon First Nations who have final and self-government agreements with Canada and the Yukon.
Much of our traditional territory is encompassed in southwest Yukon or northwestern B.C. We have Kluane National Park and the reserve of the Tatshenshini-Alsek Provincial Park as part of our traditional territory.
With regard to Bill C-15, Champagne and Aishihik First Nations is in support of implementing UNDRIP and wants Bill C-15 passed. During my time before the Senate committee, I will highlight four things about Bill C-15 that concern me as chief of the Champagne and Aishihik First Nations.
First, Self-Governing Yukon First Nations are a distinct subset of Indigenous people, leading the way in self-government and modern treaties. We think it is important that we are consulted about the action plan so that our views may be heard and incorporated into the action plan. We would be especially interested in making sure that the action plan includes measures to apply UNDRIP to the interpretation of our treaty and self-government rights.
Second, Champagne and Aishihik First Nations would like Bill C-15 to be amended to strengthen and support self-government. For example, Bill C-15 could include provisions like those in British Columbia’s Declaration on the Rights of Indigenous Peoples Act so that ministers can enter into agreements with Indigenous bodies to implement UNDRIP, and cabinet can share or delegate decision making to self-governing First Nations governments.
Bill C-15 should be amended to make it clear that the bill will have no negative impact on modern treaties like the Champagne and Aishihik First Nations Final Agreement; that UNDRIP can only be used to build on existing treaty rights; and that UNDRIP does apply to the interpretation and implementation of existing agreements with First Nations.
Finally, Bill C-15 should be amended so that provinces and territories cannot — and I repeat, cannot — opt out. This is especially important for the implementation of our treaties in Champagne and Aishihik and the Yukon because the Yukon government continues to narrowly construe our modern treaties.
With that, I yield the rest of my time. Thank you.
The Chair: Thank you, Chief Smith. I would like to call upon Jason Madden for his opening remarks.
Jason T. Madden, Lawyer and Managing Partner, Pape Salter Teillet LLP, as an individual: Thank you, senator. My name is Jason Madden. I’m a Managing Partner at the law firm Pape Salter Teillet. We have been a part of negotiating self-government agreements and modern-day treaties in the Yukon and Northwest Territories for the Tlicho government as well as those negotiations now beginning with the Métis.
I want to focus on two particular points that I think Senator Tannas raised about the practicalities of UNDRIP.
One of the challenges with the existing section 35 framework that has been developed by the courts, including the Supreme Court of Canada and lower courts, is that it is focused on a rights-by-rights basis. Previously the argument was this: Is section 35 an empty box? Absolutely not. But now we have been filling it up right by right by right, which is an immense amount of litigation. I will say, as one of those who engages in negotiations with the ministries that are responsible for implementing those cases, that what happens is a very narrow reading of the case law or a lack of policy to inform.
For example, Métis establish harvesting rights. Great, you have harvesting rights; let’s negotiate an agreement to recognize those rights. With that, though, has to come the corollary of the responsibility in relation to self-government and regulation. That is never dealt with in the case law. The cases don’t deal with that. They deliver a win, and then our clients are forced to negotiate a consolidation of that case with the governments.
I want to highlight one quote that I think RCAP says very well. This is the naïveté of one of the challenges of why we’re actually so much in the courts.
RCAP wrote in 1996:
The role of the courts is limited in significant ways. They develop the law of Aboriginal and treaty rights on the basis of a particular set of facts before them in each case. They cannot design an entire legislative scheme to implement self-government. Courts must function within the parameters of existing constitutional structures; they cannot innovate or accommodate outside these structures. They are also bound by the doctrine of precedent to apply principles enunciated in earlier cases in which Aboriginal peoples had no representation and their voices were not heard. For these reasons courts can become unwitting instruments of division rather than instruments of reconciliation.
This is not to criticize their role. Significant victories have been delivered, but where the rubber hits the road is in implementing and operationalizing that.
What UNDRIP does is it fills those gaps. The argument around, “Well, you may have a right, but we don’t have to negotiate self-government with you,” or “We don’t understand how we negotiate,” is set out in UNDRIP. It’s a sophisticated, detailed understanding of how those rights fit together. Why people in some cases say — and I’m one of them — that the section 35 rights jurisprudence is inadequate to this do is exactly what the Royal Commission said back in 1996.
What UNDRIP provides, though, as opposed to bureaucrats having to go back into the system to get a new mandate, or we push them on issues of saying that, of course, this has to come with the recognition of that right, UNDRIP provides the answers and fills those gaps.
We have to remember that section 35 wasn’t supposed to be a right to go to court, which it has largely been for the last 30 years. Section 37 provided for constitutional conferences to attempt to resolve these between the parties. Those were unsuccessful, and that gap has been filled — in some ways adequately and in some ways inadequately — by the courts. What UNDRIP has the potential of doing is filling those spaces. What UNDRIP says on a whole host of things is just common sense. I will say — and no offence to anyone — that sometimes common sense does not happen at the negotiation tables we have with Crown-Indigenous Relations. People keep on saying, “Where in the court case does it say Métis have the right to self-government? It only says you have a harvesting right.” How do you think this happens?
The one point we want to make is that this is a tool to inform and to actually smooth the way in discussions because, one, the promise of section 37 was never fulfilled; and two, the courts can’t do it. That is why Indigenous peoples are now increasingly turning to Indigenous law and legal orders, because the section 35 jurisprudence on a rights-by-rights basis cannot fulfill the gap.
Second, I want to highlight this point. FPIC is essentially — and I will say that in one of the cases our firm took to the Supreme Court of Canada, this was a question from the judge: Is it a veto? That appears in the Little Salmon case and it continues to be the bogeyman that is used again and again. The problem is that it changes the discussion. A consent-based discussion is you’re coming to the table to say, is there a solution that we can find that everyone can be happy with? If you come with the veto under the table — and I mean that from either side — the discussion or the negotiations never get off the ground.
What UNDRIP tried to say is let’s set the table around attempting to achieve consent; let’s set the table that we’re going to have our laws interact, that we’re going to operate in partnership. I think that when people say this can’t happen, I do point to some of the situations that have arisen in the Northwest Territories. One of our clients, the Tlicho Government, is part of the Wek’eezhii Land and Water Board. They co-manage the territory in partnership with non-Indigenous people and Indigenous people being equal partners in land-use planning and resource development projects.
Co-development in relation to legislation occurs on a regular basis. One of the challenges that we have is south of 60, people have been so born into the Bill C-91 and Bill C-92 holes of that there is no space for Indigenous laws, for Indigenous constitution or for active and meaningful Indigenous decision making. That’s where the flaw lies.
FPIC will provide a different lens on how we can approach those negotiations in the future. Thank you so much.
The Chair: Thank you. Now I would like to call upon Dr. Palmater for her opening remarks.
Pamela Palmater, Chair in Indigenous Governance, Ryerson University, as an individual: Thank you very much, senator. [Indigenous language spoken].
I’m from the sovereign Mi’kmaq nation on unceded Mi’kma’ki, and I’m a member of Ugpi’ganjig Eel River Bar First Nation. I’ve been a practising lawyer for 23 years, 10 of which was spent at Department of Justice Canada and Indian Affairs, where I was trained in the legislative process, legislative drafting and statutory interpretation. My current work since has dealt with laws and policies impacting First Nations and international human rights legal obligations.
With regards to Bill C-15, I echo the submissions of Professor Gunn and Professor Napoleon. I am in favour of passing Bill C-15. It’s long past time that Canada took the necessary steps to implement UNDRIP into domestic law. Indigenous peoples all over the world, including First Nations communities and organizations, have continually called on Canada to implement UNDRIP, and it is because of their work that UNDRIP even exists.
We know that TRC Calls to Action 43, 44, 45 and others speak specifically to the centrality of implementing UNDRIP as a form of reconciliation — not just implementing UNDRIP, having the national action plan, but also repudiating any concepts like the Doctrine of Discovery and terra nullius that have been used to justify assertions of sovereignty over Indigenous lands.
We also know from the National Inquiry that their very first Calls for Justice require that Canada develop a national action plan to end genocide that includes specifically the implementation of all international human rights instruments, including some of those already mentioned, like the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination and UNDRIP. And not just those conventions, declarations and treaties, but also all of the recommendations that have been made by those human rights treaty bodies to have Canada end the ongoing grave human rights violations.
Why? Because despite all of Canadians’ federal, provincial and territorial human rights laws, the Charter of Rights and Freedoms and section 35 protections for Aboriginal and treaty rights, Canada honours our rights more in the breach than in the implementation.
Why? Because Canada is an outlaw. It’s a state perpetrator of historic and ongoing genocide. Canada’s laws, legal precedents and whole legal system is why we have an ongoing genocide and is why Indigenous peoples are dying.
It’s the absolute intention of UNDRIP to change the law. We only need to look at the recent letter from the United Nations Committee on the Elimination of Racial Discrimination that called on Canada to account for failing to protect the rights and safety of Mi’kmaq people to fish and govern their fisheries.
We know that all of the governments and institutions and some segments of society and industries suffer from systemic racism, which results in real harms to Indigenous peoples. Canada’s current legal system and laws do not protect Indigenous peoples.
We also know that Canada’s failures — even their policy decisions — are made every day where choices are made to violate human rights in order to maintain and protect the status quo that has privileged and benefited so many people for so long.
Incredibly, these decisions have been made in the face of all of the horrifying statistics about the rates of kids in foster care, murdered and missing Indigenous women and girls, incarceration, homelessness and violence.
So on the question of whether we need UNDRIP to be implemented into Canada’s legal system, most definitely. Like all international human rights obligations, states should always take steps to implement them.
Will Bill C-15 help us move in the right direction? Yes, it will. Every human rights instrument that we have is a tool to protect the human rights of Indigenous peoples that are not being protected right now.
Do I trust governments in Canada to interpret, implement and respect the rights? Absolutely not. We only know from history, they will fight us every step of the way. But that’s the next stage. We need the first stage to have the tool with which to defend our human rights.
Does Bill C-15 and UNDRIP hurt Indigenous rights in any way? I don’t think so. Both documents contain specific provisions saying that there will be no abrogation or derogation of these rights that already exist. You don’t need yet another provision to say that again.
I think the first step is passing Bill C-15 to give us one more tool to fight the Goliath that is Canada’s genocide machine, even though the bill itself might not be perfect. If you gave it to me as a legislative drafter, I would include a whole bunch of other provisions. I would put in lots of clarities, including things that should happen during the national action plan. But I think the most urgent situation we have before us is to get UNDRIP incorporated into Canadian legal systems and ideologies and judicial interpretation. We can work out the vast majority of issues during the national action plan.
I also think that Canada has to lead at the federal government level. How can we call on provinces to do the same thing if the federal government isn’t prepared to do this? I would hate to see this bill be held up in the Senate, like with Bill C-262, when we’re talking about the basic human rights of people: the right to life; the right not to be killed and targeted by police officers; the right not to be sexually assaulted and exploited by police officers, corrections officers, social workers and teachers. We have the right to say “no” to violence.
The Chair: Thank you, Dr. Palmater. I would like now to open the floor for questions. I would like to begin with the sponsor of the bill, Senator LaBoucane-Benson, followed by the critic of the bill, Senator Patterson.
Senator LaBoucane-Benson: My question is for Mr. Madden. I’m very grateful for what you have shared today. I have heard many leaders say UNDRIP is a framework for reconciliation. From what you’re talking about, this appears to be connected to what you have referred to as a consent-based approach to negotiations.
Can you explain what that is and how a consent-based approach is operationalized? Can it be used to find common ground and reach an agreement that may not be perfect to both parties, but can be found to be acceptable?
Mr. Madden: Thanks very much for the question. I think that a lot of people focus on the bogeyman, but no one actually focuses on what’s working out there. I just want to highlight, we use the Tlicho land and water board as an example. It has 50% Tlicho appointees and 50% non-Indigenous appointees to it. That board, where it is in place, has fewer judicial reviews or legal challenges to the licences that it issues than in any of the other boards or, of course, south of 60.
Why does that happen? It’s because the Indigenous people have a decision-making role within the body itself, that essentially they have just as much stake in the credibility of the institution as do their non-Indigenous relations and neighbours.
I think that what UNDRIP and FPIC allow for is for you to begin a discussion, not necessarily saying anyone has a veto, but saying, “How can we possibly recognize the different interests around the table, as well as incorporate Indigenous law or an Indigenous group’s own environmental assessment of a project into the decision making?”
Industry knows how to do this. There are a multitude of projects across this country now where First Nations, Métis and Inuit are actually partners in some of the developments that have occurred on their territories; or fundamental participants, in a multitude of different ways, where they are sharing the benefits of those lands, or, essentially, in some cases having the right to say, “no.”
The point, though, is that coming at it from a different perspective or from a consent-based approach is not a negative connotation. It actually just allows people the flexibility and the space to potentially come up with a solution that works for all.
I think people don’t necessarily know, because what does hit the media is all of the court cases or where Indigenous peoples are fighting to say no. There is also a whole host of examples where collaboration, co-management or co-ownership are taking place. That’s actually because of the jurisprudence of the Supreme Court of Canada, and UNDRIP will only allow that to be strengthened even more.
The Chair: Thank you.
Senator Patterson: Thank you to the witnesses. Dr. Palmater, welcome back to our committee.
You mentioned, amongst the many injustices against Aboriginal people, the Mi’kmaq issue. The two Marshall Supreme Court cases say that the Minister of Fisheries and Oceans can manage the fishery, which could include imposing restrictions. However, as we know, those restrictions on such things as seasons have been rejected by the Mi’kmaq.
I’m not trying to take sides, but I would like to ask you this: Is it your position that Bill C-15 will compel Canada to ignore those Supreme Court decisions?
Dr. Palmater: Thank you for your question. It’s a really important one.
I think what Bill C-15 will do is require that Canada bring all of its laws into compliance with UNDRIP, and that includes all human rights protections with or within UNDRIP, which include the right to govern our territories, govern our resources and govern our peoples in accordance with our laws and in partnership with other levels of government where that comes to a negotiated settlement.
It also requires that the courts will have to take into account the full spectrum of human rights protections that they don’t now take into consideration. The courts very much look at fact-based and precedent-based, but just because the common law is based on precedent doesn’t mean that it’s right. The whole purpose of the Constitution as a living document is to evolve over time, change the law and recognize that laws and legal values and principles in any legal system, even a multijuridical one, change over time.
Imagine where we would be if we had given in to the fears of men, where women were asking for equality in the law. Imagine if we gave in to the fears. They were predicting doomsday if we allowed women to have the right to say what they do, the right to vote or the right to participate in government.
So we’re in a situation here where we have normalized racism, dispossession and oppression within the very elements of not just our government institutions and laws, but even in the way we think about what is good and not good for the country. Imagine even having to have a discussion that recognizing the bare minimum human rights of Indigenous peoples could somehow be a problem.
The Chair: Thank you, Dr. Palmater.
Senator Coyle: Thank you so much to each of our witnesses. I take it from all three of you that you want this bill passed, so that’s good for us to hear.
My question is actually for Mr. Madden. I am not a lawyer, and I am not a constitutional expert, so I’m trying to piece together my understanding of what you said. I found it quite helpful. I just want to run this by you.
What I understand from you is with section 35, in the absence of an UNDRIP framework within the laws of Canada, the courts have become instruments of division. That’s because of this piecemeal treatment of this right or that right and never a comprehensive framework to hang those rights on, and UNDRIP will help fill those gaps. You could tell me if I’ve got that part right.
Could you tell us what you think the implications will be for the courts in Canada once Bill C-15 is passed and UNDRIP is then taken and looked at how it applies to each of the laws of the land and how those need to be changed? How do you see the transition from where we are today to where we will be in a number of years?
Mr. Madden: Great question. Yes, that is exactly what I’m saying. I think the courts are unwitting participants within that division, but they are part of the problem. I think the problem, as I outlined in that quote by the Royal Commission on Aboriginal Peoples, is they are dealt with a set of facts before them and they answer the question before them. Courts are very good at saying, “And we’re only answering this question.”
Well, the challenge for Aboriginal people when they are going to court for justice is they are seeking a much broader determination; we win on that issue, but we lose in the war because then how government policy may be implemented or interpreted is very narrow based upon that case law. We somehow look to the courts that they have all the answers. They do not. The Indigenous governments, the Canadian government and provincial and territorial governments, that’s where the answers lie through negotiations and respect for co-sovereignties, jurisdictions and the laws on all of those parts.
The challenge of how section 35 was supposed to be devised is those were supposed to be negotiated in a broad UNDRIP-like discussion back in post-1982. That never happened, and where a lot of energy and focus from Indigenous peoples have been is to articulate or set those basic minimums out in UNDRIP. That’s essentially what UNDRIP provides for.
The other point I want to make is it will help government policy. It’s just as important as what the laws say —
The Chair: Thank you, Mr. Madden. Time has expired.
Senator Francis: Thank you. Some of you have already spoken to this question, but I want to give you an opportunity to elaborate further, if you like.
Would you agree that the Supreme Court of Canada’s interpretation of section 35(1) of the Constitution Act has failed to reset the colonial relationship between Indigenous peoples and Canada, especially by failing to understand Indigenous peoples’ rights according to their own legal traditions?
If so, could the framework proposed in this bill to bring our domestic laws and policies into alignment with the United Nations Declaration on the Rights of Indigenous Peoples help address this disconnect? What impact could it have in the interpretation of constitutionally protected Aboriginal and treaty rights?
Maybe I will have my fellow Mi’kmaq friend, Dr. Palmater, start off.
Dr. Palmater: Wela’lin. That’s a really important question. Not only has section 35 failed to reset the relationship, it has reinforced the unbalanced, oppressive relationship that exists in all of its court cases where they purport to give you a win, but there is always some limiting factor in there. There is always the presumption of sovereignty, always the presumption of control and always the presumption of paramountcy. That’s where the problem lies.
I guess the real question is whether Canada is working right now. You can’t say “yes” because we are in an ongoing genocide. Canada is a state perpetrator of genocide. That means you have to look at the totality of incremental amendments in all of these different laws and policies, all of the different court cases under section 35, and ask, “Has that helped move us out of genocide?”
In fact, on many socio-economic indicators, like incarceration, murdered and missing and foster care, everything continues to get worse. So we need something that will reset the relationship.
If you look at UNDRIP, although some people are fearful of it, UNDRIP is just the bare minimum standard of human rights that will bring about the health, safety, well-being and dignity of Indigenous peoples that, like Professor Gunn said, is already represented in a whole host of other declarations and treaties that Canada is bound by, so we shouldn’t be afraid of it. We should welcome the protecting of human life, welcome self-determination, welcome peace and stability on these territories and working together, which is what the original treaties envisioned — and which is not what happened.
Senator Francis: Thank you, Dr. Palmater. Would the others like to jump in?
Mr. Madden: I would like to go back to Senator Coyle’s comment as well. One of the biggest issues is that government policies need to align. The internal policies of government are just as destructive as the external laws.
Senator Anderson: This question is for Mr. Madden. What will the passing of the bill mean for Métis nations across Canada? Further, many have described this bill as a starting place and not the end. What next steps would you like to see from the government after Bill C-15 to further enhance the relationship between Métis nations and the Government of Canada?
Mr. Madden: It’s an amazing development for Métis and First Nations, as well as Inuit people. I think that the bill is absolutely needed now. The continuing dithering on it is essentially causing delays in bringing Canada’s laws and policies into alignment with UNDRIP.
The point I have tried to get to several times is this: My experience in doing the dark arts of negotiation with Indigenous relations is it’s not the laws or the Supreme Court of Canada decisions that are unhelpful to us; it’s the government’s internal policies that bureaucrats bring to the negotiation table, which are still based upon the Doctrine of Discovery, denial and based not on recognition that there are other jurisdictions and laws that need to be dealt with.
Here’s the thing: The bureaucrats look to the Supreme Court of Canada decisions to see what the answer is, but that’s a self-fulfilling failure because of the point I made earlier. All that the courts are dealing with is a specific question; they’re not looking at it more broadly. UNDRIP looks at it more broadly. UNDRIP will be the tool that will allow self-determination for the Métis nation and for the governments that represent the Métis nation to finally find their place in Confederation based upon nation-to-nation, government-to-government relationships. That’s what so key about UNDRIP, and that’s why many who act as negotiators and represent our clients on these issues are reaching for this tool. We already attempt to do it, but essentially those internal alignments of government policies aren’t just based upon the four square corners of court cases but are filling in the gaps in between, which, to be quite frank, that’s the most important part of the negotiations and the agreements we reached.
Even though modern-day treaties are voluminous and extensive, there is a host of gaps that lie in those as well, and we can fall back on UNDRIP by saying this is where the bare minimum is, and this is how it should inform our interpretation of those agreements.
This is an immense, important bill to move forward on, and I know the leadership of the Métis nation has echoed this. The time is now for it because I think that waiting more and more is only denying rights more and more. We know what is currently operating is not working; therefore, why would we delay any longer on something that is a tool that we can all aspire to? Aspirational does not mean unobtainable. It just means it will take time to get there.
Senator Pate: Thank you to the witnesses. My question is for Dr. Palmater. Recently, I listened to a podcast where you discussed Bill C-15 with Ellen Gabriel, and you and Ellen talked about the fact that the UN declaration is seen as outside the scope of the Indian Act and section 35 of the Charter. What is your take on whether Bill C-15 is meant to change the law, and how will it address or impact the genocide you discussed earlier today and on the podcast?
Dr. Palmater: Thank you so much for the question. That’s why we are here. We are trying to change the law and all of the policies and regulations that attach to those laws and policies, all of the economic and governing systems and the way systems work. That’s exactly why we’re here.
If there is no intention to change the law, and this is just some sort of political pat on the back — “Yeah, yeah, you have human rights; just not here” — we shouldn’t even be having this discussion. But the fact that we’re here now having this discussion should make us realize that people who defend so-called well-settled jurisprudence are really defending well-settled injustice, well-settled breaches of human rights, treaty rights, and Aboriginal rights — even the lives and safety of people. We’re talking about a system of injustice, racism and genocide.
But UNDRIP offers something different. UNDRIP says if our relationship is based on just basic minimum human rights that, by the way, most other people get to enjoy, and if Indigenous people’s basic human rights are represented, we can move forward in a collaborative way without the fear that’s attached to negotiations, that if we don’t agree to whatever is put before us they are sending in the RCMP and the army and they’re going to incarcerate us. That’s not a negotiation.
We have to remember that reconciliation is going to be painful. We are going to be pushing people out of places that have power, privilege and wealth based on our ongoing dispossession and trying to reset the relationship more in the spirit of the treaties where we both belong, where we both prosper, where we all recognize each other’s rights.
So, yes, it should change the law in very significant and substantive ways, no matter what federal officials have to say. That’s the whole purpose of it. Section 35 hasn’t done that, and, in fact, we have lots of problematic court cases around section 35 that need to be reconsidered. How can we possibly get those reconsidered without something fundamental like UNDRIP that says human rights are the bare minimum?
Senator Pate: Thank you.
Senator MacDonald: My question is to Chief Smith. I read the brief that Champagne and Aishihik First Nations submitted to the House of Commons committee, and I noted that you asked for a more reasonable time frame to develop and optimize an action plan. It said the House shortened the time frame from three to two years. You asked that the government incorporate appropriate [Technical difficulties] with rights-holders. We were told by Grand Chief Abram of the Association of Iroquois and Allied Indians on Friday that he can guarantee that not a single rights-holder in Ontario has been consulted.
You also said that, in the meantime, it is our view that Bill C-15 applies to the Yukon government; however, ministers and officials have made it clear that the bill solely impacts federal laws and federal jurisdiction.
As I see it, none of your concerns have been addressed by amendments in the House. Do I understand your position correctly? Are you comfortable with the bill in its current form? Thank you.
Alexa McClaren, Barrister and Solicitor, Champagne and Aishihik First Nations: Good afternoon. I’m here with Chief Smith supporting him and to answer the question that you just asked.
I’m legal counsel for Champagne and Aishihik First Nations, and I helped to participate in drafting the brief.
My understanding of Champagne and Aishihik First Nations’ position is that Champagne and Aishihik support passage of the bill in its current form. I think, as Dr. Palmater has said in her comments, it’s important to get the bill passed. Would it be preferable to have some changes to the bill? Yes, and that’s what Champagne and Aishihik First Nations was putting forward when they suggested, for example, strengthening the non-derogation clause. However, the priority is really to get the bill passed and then see it as a step on the road to working toward achieving the goals.
In terms of the application of the bill to the Yukon government, as well as to other territorial and provincial governments, it is, as Chief Smith noted, a priority for Champagne and Aishihik First Nations to have this bill apply to the Yukon government.
You can see these types of things playing out in litigation in recent court cases in the Yukon. For example, the Yukon court is arguing right now that laws made by First Nations and even their constitutions were made using delegated powers. That is not an appropriate argument for the Yukon government to be making. You see it time and time again where there is a tendency to spend a lot of time —
The Chair: I’m sorry, Ms. McClaren. Your time has expired.
Senator Hartling: Thank you, witnesses, for being with us today. I am learning a lot of new things. I have a question for Dr. Palmater and Mr. Madden.
I’m living on the unceded territory of the Mi’kmaq people here in New Brunswick. I’m thinking of some practical examples and wondering if we had Bill C-15, how would that change these issues? One of them is the issue of fracking in Elsipogtog a few years ago. The people had to stand up to that. It took a long time to get it settled, and they went through a lot. If Bill C-15 was here now and that happened, what would happen?
The other issue is in Nova Scotia with the fisheries issue. I watch this almost nightly on the news, and I think the people are stressed trying to get their rights met. If we had Bill C-15 for the Mi’kmaq people, how would that impact them and what would be different in the outcomes that they would experience?
Dr. Palmater: Thank you for your question.
Being a Maritimer, I welcome questions from New Brunswick and Nova Scotia. We all know that if Bill C-15 were passed tomorrow, that wouldn’t make UNDRIP law in and of itself. It’s not a document that states, “It is law.” We know there are problems with federal and provincial jurisdictional disputes and debates.
That being said, vis-à-vis the international human rights law systems and community, the obligation falls on Canada. It doesn’t matter how Canada organizes itself internally, meaning federally or provincially. The law is the law. Once Canada adopts an international human rights obligation, that’s incumbent on Canada.
While this is a piece of federal legislation, it will be a strong signal to all courts all over Canada, whether or not the provinces have specifically implemented it, that this is the bare minimum human rights standard. It would be pretty difficult for the province of New Brunswick to say, “Yeah, but in New Brunswick, we don’t do human rights for Indigenous peoples” if Bill C-15 and UNDRIP now applied at the federal level. That simply wouldn’t fly.
I think they should all pass similar legislation, but if they don’t, it doesn’t hurt anything. It will only help our situation, especially in New Brunswick where we have not had movement, and in places like Nova Scotia.
Mr. Madden: I would add that what UNDRIP does is it opens up the Constitution and recognizes the constitutional space Indigenous peoples need to have.
Canada is based on a fiction in a whole host of ways — this two solitudes narrative that never existed, that Indigenous peoples are just as equal partners in Confederation as the section 91 and section 92 governments. That is what has been historically missing.
Even though everyone says they reject the Doctrine of Discovery, they don’t acknowledge that there were already laws in place on these lands and that they were snuffed out, driven over, wiped out by the section 91 and section 92 governments or a constitution that passed in 1867 that Indigenous peoples had nothing to do with.
What we have been doing through modern-day treaty making and through the cases of law at various points in time is creating these spaces. One of our clients, Listuguj, recently signed an agreement in Quebec in relation to fisheries, but it was based upon the principles in UNDRIP, not going further —
The Chair: Time has expired again, Mr. Madden.
Senator Tannas: First, let me say thank you to the witnesses and in particular to Dr. Palmater. It’s always a shot of electricity and urgency that comes with your testimony. It does not go unnoticed or unappreciated by me or by many other senators. I want to say thank you.
I believe that the 95% of people who are not Indigenous who sat down and read the United Nations Declaration on the Rights of Indigenous Peoples would be able to check off 95% of what is there.
I believe that the reason there is continual harping about FPIC is because it’s about the only thing that anybody can find fault with. I can’t find fault. It is, as Mr. Madden said, an outstanding document full of principles.
I worry about two things though, one is FPIC and one is territories. What is a territory? Within FPIC, I worry about consent, although I completely buy into the idea of what consent could look like without it being a veto. I totally agree.
Harold Calla, whom we will hear from later, has smart words around this. The question of who provides consent is the tricky piece for a business person who has to put capital somewhere, create value and jobs, and can put it here with a clear set of rules or here with an unclear set of rules. My grandmother said to one of her daughters who wanted to get married to a guy with no prospects but who was good looking, “Well, when you have nothing to eat, at least you’ll have something to look at.” I worry about defining FPIC and territories. The minister told us that we would get that done in the next two years. Is it doable? Could you weigh in quickly? I sucked up all my time.
Dr. Palmater: Thank you so much for your comments. I appreciate what you said.
Here is the thing about FPIC in terms of consent. When we speak of women’s consent to have sex, yes means yes and no means no. In terms of medical consent, yes means yes and no means no. In terms of parental consent, for things as limited as school trips, yes means yes and no means no. Why have we impoverished consent and fear it only for Indigenous peoples while everybody else is allowed to consent? Thank you very much.
The Chair: Now, I’ll turn to the second round of questions, beginning with Senator LaBoucane-Benson, the sponsor of the bill.
Senator LaBoucane-Benson: I have no further questions for the panel. I will give my colleagues more opportunity to ask questions. Thanks.
Senator Patterson: Dr. Palmater, you’re optimistic about the impact of Bill C-15, but you’ve also been critical of the government’s level of commitment to implementing a range of bills, including Bill C-91, for which we’re still waiting for a languages commissioner, two years and running; Bill C-92, and I don’t need to tell you about challenges there; and, of course, Bill S-3, for which you are very familiar with the shortcomings in implementing gender equality.
We’ve heard that the drafting process of the action plan and implementing it will be complex. Do you have any concerns about that pattern being repeated with this bill? If so, are there any implementation measures you think would add a layer of accountability?
Dr. Palmater: Thank you for the question. As everyone knows, I’ve always raised significant issues with any federal legislation I have ever testified on, and for the most part, I’ve been opposed to them, unless there were significant amendments, so it’s pretty significant I’m here supporting Bill C-15. The core objective is to get UNDRIP and basic human rights into law in this country. And, yes, do I think Canada will end up fighting it if there is a different government or this government? Will they delay? Will they have their own interpretations? Yes, they already have a backgrounder on it where they try to purport what it will mean and what it won’t mean, before we’ve entered the negotiation process. However, that doesn’t detract from the tool in and of itself. It’s a tool to move the agenda forward. It’s a tool to push. It’s a legal lever. It’s a political lever.
Given the vast out-balancing we have with Indigenous peoples suffering ongoing genocide and trying to push Canada, every single tool is incredibly powerful. We absolutely need it. The whole point of the national action plan is to work out all these processes and to figure out how we want to do things. We may want to do things differently. The Inuit may want to have a commission. Different First Nations may want to have something else.
That’s the whole point of it — to recognize our independent human rights in this regard and not to use the fact that colonization in Canada has divided us into 634 First Nations against our will. We didn’t do that. So Canada can’t come back to us now and say, “Oh, it’s too hard to talk to you all.” Hey, you created this. We didn’t create this. We already have 634 First Nations with all their own band membership codes, election codes, bylaws. We already have that system, so we can’t say it’s going to be too complex if we start recognizing their own laws. We already have them. We are just talking about recognizing our nation-based laws, which actually would be much simpler.
Senator Coyle: This is a question for Mr. Madden, just to push a bit more on the point that Senator Tannas was making.
Many people are concerned and have fears that if this bill is passed, it may deter investment in Canada’s resource development and other such businesses. How would you counter this narrative?
Mr. Madden: Great question. I would counter this narrative with looking at what is already happening because you’ve pushed Indigenous peoples into processes that don’t address their laws, their rights and don’t look for consent. Whether it’s Northern Gateway, whether it’s TMX, do you think that that doesn’t demonstrate already that something isn’t working? And also we do have examples in this country that are working. Those processes start from FPIC-based principles.
I struggle with this. It’s like there is a fire that you’re screaming about, but there is a place where you can find tools to put out that fire by virtue of approaching it in a different way. We have had 150 years of governments knowing best in relation to Indigenous peoples. UNDRIP allows for a partnership or nation-to-nation, government-to-government dialogue.
It can’t be worse. In fact, we do know that when we do see that aggregation on a national scale or Indigenous communities coming together as partners, we see giant opportunities to actually increase investment within Canada and make it a more stable investment climate. We are already there at a stage where the courts are constantly playing arbiters in this. We know that when there is co-management, when there is co-decision making, that court decisions or legal actions in those areas decrease. We actually have statistics on that now, when you look at land and water boards north of 60 versus south of 60.
It is because it’s a different regime, as opposed to a denial regime where Indigenous peoples are just bystanders in what is happening in their territory. They are brought into the process early on with proponents or with the institutions themselves in order to have decision making that makes sense.
Indigenous peoples aren’t going anywhere. This is the thing that I always struggle with, with governments. Make progress, not perfection. You can’t do worse. The issue here is that this really will move the needle. That’s why it’s needed now, not another two or three years from now.
The Chair: Thank you, Mr. Madden.
Senator Anderson: My question is for Chief Steve Smith. You spoke of an amendment regarding modern treaties. Can you please expand on your concerns of this bill as it relates to modern treaties? Does the concern about provinces and territories opting out stem directly from experience regarding negotiations or implementation on modern-day treaty negotiations? Further, is there concern that this would happen with this bill?
Ms. McClaren: I’m going to jump in here for Chief Smith again. The concern about Bill C-15 not applying to Yukon does come from implementation issues that have arisen. You can see, as I was speaking about before, the cases that have come before the court around the interpretation of the agreements, such as the case of Nacho Nyak Dun where there was a process in place, under Chapter 11 of the agreement, to try and decide about a land-use plan for Peel River. The Yukon government tried to roll that back. All those years of planning were sort of ignored. The court upheld the process and sent them back to an earlier stage, so that was a good thing.
You can see there is a lot of time spent when you are in the implementation of final and self-government agreements in the Yukon still having to have these basic fights around the attempt to narrowly construe the rights in the treaties and, in particular, self-government agreements.
I think the first part of your question was in relation to the concern around existing treaty rights. The answer to that is really just to ensure that all these treaty rights that are already set out in these agreements are there; they exist. These are modern treaties and different from historic treaties. First Nations are farther down the road in terms of passing their own laws under their self-government agreements than perhaps in other parts of Canada; not all First Nations, but there is a specific momentum in the Yukon because of their final and self-government agreements. These need to be sure that UNDRIP is adding to the interpretation of these existing agreements and not diminishing them in any way.
I’m not sure if I have answered your question fully.
The Chair: Thank you, Ms. McClaren.
I apologize, Senator Pate; our time has expired.
I want to thank our witnesses for this afternoon, Chief Smith and Alexa McClaren. My thanks also to Mr. Madden and Dr. Palmater. Thank you for appearing with us.