THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
EVIDENCE
OTTAWA, Friday, May 14, 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; and the subject matter of those elements contained in Divisions 10 and 31 of Part 4 of Bill C-30, An Act to implement certain provisions of the budget tabled in Parliament on April 19, 2021 and other measures; and, in camera, in consideration of a draft agenda (future business).
Senator Dan Christmas (Chair) in the chair.
[English]
The Chair: I wish to welcome all of you and our viewers across the country who may be watching on sencanada.ca to the Standing Senate Committee on Aboriginal Peoples.
Before we begin, I would like to acknowledge that we are meeting today on the unceded lands of the Algonquin Anishinaabe. I have a few housekeeping items to go over. I would like to remind senators to please keep your microphones muted at all times unless recognized by name by the chair. Should any technical 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 with the technical assistance number provided in the meeting confirmation document.
Before we begin our discussion, in order to safeguard confidentiality of our conversations, I remind senators, their staff and community 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 meeting cannot be overheard by third parties. Participants should know to do so in a private area and to be mindful of their surroundings.
My name is Dan Christmas. I’m a senator from Nova Scotia. I’m Mi’kmaq, and I have the privilege of chairing this committee. I would like to introduce the members of the committee participating in this meeting this morning: Senator Margaret Dawn Anderson from the Northwest Territories, Senator Mary Coyle from Nova Scotia, Senator Josée Forest-Niesing from Ontario, Senator Brian Francis from Prince Edward Island, Senator Nancy J. Hartling from New Brunswick, Senator Patti LaBoucane-Benson from Alberta, Senator Michael L. MacDonald from Nova Scotia, Senator Kim Pate from Ontario, Senator Dennis Glen Patterson from Nunavut, Senator Carolyne Stewart Olsen from New Brunswick, Senator Scott Tannas from Alberta and also joining us from the Yukon, Senator Pat Duncan. There are other senators who may join us during the day. I will mention them as they sign in.
I am very pleased to welcome our guests this morning. I wish to welcome Norman Yakeleya, National Chief, Dene Nation; Dr. Abel Bosum, Grand Chief, Grand Council of the Crees accompanied by Paul Joffe, Legal Counsel, GCC (EI)/Cree Nation Government; and as an individual, Dr. Naiomi Metallic, Assistant Professor Chancellor’s Chair in Aboriginal Law and Policy, Schulich School of Law, Dalhousie University.
Welcome. Chief Yakeleya, Grand Chief Dr. Bosum and Dr. Metallic will 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 senators have a question for our guests, they are asked to use the raise-hand feature on Zoom to signal this to the clerk, and they will be acknowledged in the Zoom chat at the bottom of the screen. Please note that APPA committee members will be given priority on the list of questioners. If you as guests — as witnesses — have any written follow-ups to the questions, they can be submitted to the committee clerk no later than May 30, 2021.
The committee staff will advise me as chair, via text, when there are 10 seconds remaining for the speaking time of both witnesses’ introductory remarks and senators’ question-and-answer time. I will do a 10-second countdown with my hands, then to five, then to zero, and then I’ll let you know when your time has expired.
Now I would like to welcome our guests. I invite Chief Yakeleya for his opening remarks.
Norman Yakeleya, National Chief, Dene Nation: Thank you, senator. [Indigenous language spoken]. In my language, I said, “Thank you, my relatives.” Outside is beautiful, especially in the Northwest Territories. It’s snowing right now, so I wanted to say that Mother Nature is always making us well aware who is the boss of this land.
I am the National Dene Chief of the Dene Nation of Denendeh. Denendeh is also known in your area of the Northwest Territories. I want to thank you, the Standing Senate Committee on Aboriginal Peoples, for the opportunity to speak with you today about this very important Bill C-15. I also want to send my greetings out to my Northern fellows: the Yukon senator, the Northwest Territory senator and the Nunavut senators, whom I have all known. I also want to send my greetings to the senators across this beautiful land, Canada.
I am here today to tell you that the Dene Nation supports the concept and ideal of Bill C-15. We have two critical amendments we need to look at, which I’ll explain in a moment.
First, I want to explain that I am the National Chief of the Dene Nation. I work for 15,000 Dene in Denendeh in the Northwest Territories, who are organized into community and regional self-governing governments. I am mandated by my leadership to speak on national issues of common concern and importance such as Bill C-15. Community and regional governments also speak on their own behalf. We have band governments under the Indian Act that are still in existence, which need to be recognized in Bill C-15.
We are the Dene. We call our land Denendeh. It means the spirit of the land where we come from, known in English as the Land of the People. Our history goes back for thousands of years and beyond, since the beginning of time according to our ancestral oral stories. For the last 154 years, we have travelled a difficult path with Canada.
Since its discovery, Canada has used a road map based on the Doctrine of Discovery as its guide. This is the wrong road map that we are walking with. Many Dene are still governed under the Indian Act, the jurisdiction that, as you know, was designed to assimilate us into something we are not.
We have endured much and learned a lot in that time. We also felt a lot as an Indigenous people. We have survived the policies meant to extinguish our rights and for us to cede, surrender and release our land, our waters and our airs. We cannot do that.
In other areas of the Northwest Territories, we were forced to negotiate rolling surrenders down the Mackenzie Valley as our land claims were settled. Our way of surviving in today’s world is totally something that the native people, the Dene people, are aspiring to.
We now know, after 154 years, the status quo is not working. With every economic and social indicator, we can confirm those hard facts. We also know that no one government can go it alone in this day and age. COVID-19 has given us the opportunity to look at the gaps more closely and with a clearer lens. Only when the support went out to the Canadian and Indigenous people did we see that there were huge gaps to fill to deal with COVID-19.
Senators, this is not an easy task. Yet, we want to work with Canada in the area of nation building. The institutions of today, created by the government, are very entrenched and hard to move as they work to preserve the status quo. The colonial way of government may be good for you in the south. UNDRIP is our way to build back better in Canada. Canada is a nation of cooperative federalism with seats at the table of Confederation for the provincial, federal, territorial and municipal governments. We should also include the Indigenous governments at this point, not only telling Indigenous people.
The Dene are strong and support Bill C-15. This is our dream.
The Chair: I’m sorry, chief. Your time has expired. I would like to turn now to Grand Chief Dr. Able Bosum for his opening remarks.
Abel Bosum, Grand Chief, Grand Council of the Crees: [Indigenous language spoken]. Good morning to all senators and all participants. Thank you, Mr. Chair, and thank you to the committee for inviting me to share some thoughts with you today about this extremely important bill that you are now studying.
As I did at the House of Commons Standing Committee on Indigenous and Northern Affairs, I would like to focus my remarks today on what, I believe is fair to say, has been the most contentious issue related to Bill C-15 and UNDRIP itself: the concept of free, prior and informed consent, or FPIC.
You have heard a great deal of testimony about free, prior and informed consent, including views that have attempted to cast this notion as nothing more than a potential veto over proposed projects involving the land and the natural resources on traditional Indigenous land. Because of this alleged veto power, witnesses have told you that the implementation of UNDRIP in Canadian law would be catastrophic for the Canadian economy.
The experience of the Cree Nation in northern Quebec provides clear evidence to the contrary. Over the course of over four decades, we have gradually and incrementally put in place a number of processes that have provided for our deep involvement in the decision making around proposed economic development projects on our traditional land. These processes take into account the people’s environmental and social concerns. The processes result in our involvement in such projects as environmental monitoring, establishing protected areas, employment, training, contracting and financial benefits.
The processes we have established in northern Quebec are of broad engagement. They are about dialogue. They are about serious conversations. When we’re at a table with our rights acknowledged, we all come to a more mature perspective — that there is much more that we have in common than what separates us.
The experiences I share with you are not theoretical, they are not ideological and they are not rhetorical wishful thinking. Very few of the witnesses who have expressed concern about FPIC speak from life experiences or from lived experiences.
Our views are based on the hard work of, first, gaining acknowledgment of our rights, and then rolling up our sleeves to do the hard work of translating those rights into meaningful processes that put us squarely at the table of decision making, along with others, about projects proposed to take place on our traditional territory.
These processes are not about players making unilateral declarations about the fate of a project. Indeed, unilateral declarations about resource development projects have historically been the norm, and they have excluded Indigenous people. We must move away from being entrenched in the colonial perspective that Indigenous people only have the right to say yes. Genuine inclusion must be robust and effective enough to permit a full airing of real concerns, real issues and serious views about projects, policies and laws that affect Indigenous people. Then, these must be incorporated through dialogue into the eventual decisions.
We in northern Quebec have implemented our version of free, prior and informed consent, and the sky has not fallen. The investment climate has not been negatively affected. In fact, it has improved. We continue to create win-win situations for rights holders and others with whom we must engage. We have improved all the relevant relationships around us with non-indigenous communities, industry, and the Province of Quebec. It has been precisely because our rights have been acknowledged and because we are recognized to be fully legitimate participants in the economy and in the political life of our region that we have contributed to the journey toward peaceful coexistence and social harmony.
Nothing is more detrimental to the Canadian investment climate than the status quo. It is the status quo that has created and continues to create uncertainty and an unstable investment environment. The fundamental issue in all of the debates around Bill C-15 — UNDRIP and FPIC — is whether Canada will adopt an honourable approach to respecting our human rights and addressing the conditions of Indigenous people, and whether that approach will be based on a full inclusion of Indigenous people in the political and economic life of Canada.
It is about whether we are genuinely prepared to close the long and painful chapter of our collective history, which has been based on and perpetuated by outdated colonial practices. The real question before you, senators: Is Canada prepared now to recognize our historic exclusion as a relic of the colonial past and to move in the direction of inclusion, honour, good faith and respect?
This is what Bill C-15 is about. Now is the opportunity for us all to be on the right side of history. [Indigenous language spoken]. Meegwetch.
The Chair: Thank you very much, Grand Chief.
Naiomi Metallic, Assistant Professor Chancellor’s Chair in Aboriginal Law and Policy, Schulich School of Law, Dalhousie University: Thank you, Senator Christmas. Good morning. I’m coming to you from Mi’kmaq territory. I am a lawyer and a law professor, and my areas of expertise are constitutional and Aboriginal law. Thank you for the opportunity to add my voice to the wide diversity of witnesses who have spoken in support of Bill C-15.
You already heard from our leading scholars in international and Indigenous law, Brenda Gunn and Val Napoleon, earlier in the week, about the importance of the bill. There is little to add to their excellent testimony. Because of that I’m going to keep my message pretty simple.
Technically, the bill is not strictly legally necessary because the declaration already applies to Canadian law. However, the bill is necessary in order to facilitate meaningful reconciliation, because there is a lot of confusion and misunderstanding among politicians, lawyers, judges and the public about how Canada’s international commitments affect domestic law. The bill is important because it facilitates a much clearer, organized and timely implementation of the declaration.
The declaration already applies to Canadian law in a number of ways. One of the more prominent ways is through what is known as the “presumption of conformity with international law.” That’s a well-established interpretive principle that says our domestic law, our common law, our statutes and the Constitution should be read to be consistent with Canada’s international human rights obligations.
When I was in legal practice full time, I successfully argued that the declaration informed Canadian administrative law principles, particularly the principle of procedural fairness. The judge drew on the declaration, through the principle of the conformity with international law, to find that Canada’s Department of Indigenous Services indeed had an obligation to meaningfully consult with Mi’kmaq and Wolastoqey First Nations in the Maritimes about significant and potentially harmful changes to social assistance policy on reserve.
There are a number of other cases where Canadian judges have applied the declaration to interpret the law. However, there are also cases where judges have hesitated to apply the declaration, often based on a lack of understanding of how international human rights commitments affect our internal law. My law school now makes a point of teaching this to incoming law students, especially because of the TRC’s Call to Action to have mandatory education specifically on this. In reality, many generations of lawyers and judges have never received this education, so that’s a really important reason why the affirmation in the bill — that the declaration has application in Canadian law — is so important on a practical level.
Obviously, the provision setting out the need for an action plan for implementation is also extremely important because the work of implementing the declaration should largely be the work of the legislative and executive branches of government, and only with the judiciary as a last resort.
Some of the resistance to the bill is due to fears about how it will change Canadian law. My first response to this is that Canadian law is still deeply colonial and unjust, and therefore must evolve to be better. I can point you to a whole laundry list of scholarly articles and reports on this.
Second, the declaration is already changing and will continue to change Canadian law whether or not this bill gets passed. But this law will ensure that these changes happen in a more structured, just and timely way.
My final reflection on this fear is that Canadian law is always changing. Our courts have said that our Constitution is a living tree, capable of changing as our societies and values evolve. Important changes like women sitting at the Senate and the recognition of same-sex marriage are examples of big evolutions in that living tree. And you know what? The sky did not fall when we made those changes. In fact it made us better.
My concluding message to you, senators, is let’s get on with it. Bill C-262 and Bill C-15 have been extensively discussed and considered. It is time to pass this law. This is the right thing to do for reconciliation and justice. The declaration itself and the bill are advancing fundamental human rights of Indigenous peoples. The declaration is supported by Indigenous people around the globe and this legislation demonstrates excellent leadership from Canada on implementation. It will make us better.
Thank you. Wela’lioq.
The Chair: Thank you very much, Dr. Metallic.
Senator LaBoucane-Benson: I want to thank Chief Yakeleya, Dr. Bosum and Dr. Metallic for those powerful comments. I have a question for Chief Bosum.
Could you elaborate on how the affirmation of Indigenous rights creates a favourable investment climate? When you said that it made me want to know more about what your experience is, and how that investment climate can be enhanced with the affirmation of rights.
Dr. Bosum: We signed our treaty back in 1975 with Quebec and with Canada. It’s really a treaty of partnership. It took us some time to understand how to implement this treaty, but since 2002, after signing another agreement called the “Paix des Braves,” it was in that agreement where we found the formula where we can work closer with the province on a nation-to-nation basis and with industries.
Through establishing various policies in our region, describing the conditions that we would appreciate, we’ve been able to sign over 100 agreements since 1975. We have amended our treaty 26 times, and each time, of course, improving it and modernizing it. It’s through better working structures with the Government of Quebec that we have been able to advance living conditions and improving the economy in the North.
These are many ways, and in fact we’re even at a point now where we are actually taking over the planning of northern Quebec. Our traditional territory covers 400,000 square kilometres and the agreement a couple of years ago with Premier Legault has allowed us to do planning of infrastructure, protected areas, and finding better ways to work together and create a better climate for a win-win situation for everyone.
Senator LaBoucane-Benson: Thank you, Chief Bosum.
Senator Patterson: Good to see you Grand Chief Yakeleya. We are time constrained in these hearings. I want to give what’s left of my three minutes to you to tell us about the critical amendments that you recommend for this bill, please.
Mr. Yakeleya: Thank you, Senator Patterson. It’s also good to see you. I’ll cut right to the chase and we’ve come a long way from smoke signals to Zoom calls here.
The critical amendments to this bill would be to recognize the Indigenous governments. The bill talks about Indigenous peoples, but we need to recognize the Indigenous governments and jurisdiction of the Indigenous community. That would be number one.
Number two would be the expediency of the settlement of the land claims and self-government agreements. As you know, the Inuvialuit, Gwich’in and Dehcho have been involved in these land claims agreements and are still negotiating self-government agreements — the Inuvialuit since 1984 and the Gwich’in since 1982. The other would be a trilateral independent board to monitor and create an action plan with the legislation coming into full force, where Indigenous governments will be at the same table as the provincial and federal governments to implement Bill C-15.
Senator Patterson: Thank you, Grand Chief. On Monday we heard testimony from Jason Madden, who is a lawyer with Pape Salter Teillet and has represented many Indigenous clients, including the Tlicho. He cited the work that the Tlicho are doing in the territories, in the Wek’èezhìi Land and Water Board, as examples of FPIC in action.
Is it your understanding that Bill C-15 will not disrupt or weaken existing mechanisms, like the land and water board, which seems to be working so well in the N.W.T.?
Mr. Yakeleya: Thank you, Senator Patterson. My understanding from reading Bill C-15 is that it is the ideal legislation that would continue working to support the Tlicho or any other Indigenous government that’s now negotiated with Canada.
The Chair: I’m sorry, chief. Your time has expired again. I’d like to turn to Senator Coyle.
Senator Coyle: Thank you very much to all our guest witnesses today. It’s very helpful for us.
My question is for Grand Chief Dr. Abel Bosum. I have a real affection for your part of the world because my brother-in-law, Morley Stewart, is from Wemindji, one of your communities, so we are all family.
We understand from your testimony and from our own knowledge that the Cree Nation has gone through an incredibly challenging history over the last decades. Perhaps because of that, or in spite of that, you’ve been able to be leaders by already implementing many of the key elements of UNDRIP in your relationships and how you have comported yourself.
Your nation has developed positive, and as you’ve described them, mature win-win relationships with industry and non-Indigenous communities in the area. From what you have said, it sounds like those relationships are based on very effective processes for reviewing projects, through deep types of engagement and dialogue. That’s what we’re expecting that UNDRIP and Bill C-15 will bring to other parts of Canada and the relationships with Indigenous people there.
In answer to Senator LaBoucane-Benson’s question, you mentioned something further that I would like you to tease out. I’m curious to learn in detail about this forward planning that you’re talking about, which you’re now doing with Quebec. It sounds to me like that’s far beyond the responsive project-by-project dialogue that we have been talking about until now. What has this enabled you to do in a forward manner? Thank you.
Dr. Bosum: Thank you for that question. To put things into perspective, of course not only do we have to find solutions for implementing our treaty, but we’ve had to deal with all the federal and provincial policies in place. We have been reacting to development all these years. We’ve reacted to hydroelectric projects, forestry and, of course, mining. At the moment, there’s a great interest in lithium for batteries, and we have five projects in our territory. When we saw that, we realized that again we’re having to react. So we’ve approached the premier and suggested that we take the lead in planning so that we can identify the areas we’d like protected, which would also lead to protecting the climate.
The Chair: I’m sorry, Grand Chief. Your time has expired. I’d like to now turn to Senator Francis.
Senator Francis: I’ll direct this question to my Mi’kmaq friend Dr. Metallic and to Mr. Joffe, given that this is of a legal nature.
During our pre-study of Bill C-15, several witnesses expressed concern with the fulfillment of Aboriginal and treaty rights set out in section 35 of the Constitution Act, 1982. According to Jason Madden, the courts are developing a framework for section 35 on a rights-by-rights basis, which has led to gaps. He suggested that “What UNDRIP has the potential of doing is filling those spaces.”
Do you agree with this argument? In your view, can Bill C-15 provide greater clarity on Aboriginal and treaty rights? If so, how? Dr. Metallic, do you want to start?
Dr. Metallic: I am very much in agreement with Jason Madden. There are several concerns about how section 35 has been interpreted; still very much in a colonial lens. The key cases still rely on the Doctrine of Discovery. In UNDRIP, as an expression of core fundamental human rights principles, one of the first preambles talks about that doctrine, based on racist ideologies, is not in keeping with the declaration.
I think what UNDRIP provides is a framework for a helpful paradigm shift in terms of how we think about the relationship between Indigenous people and the state. It provides many useful principles for thinking that through, and that is the key thing it will offer.
The other thing, which I touched on in my discussion, is that this bill will put the executive and legislative bodies in the driver’s seat in moving some of this forward. Section 35, unfortunately, for the most part, has often resulted in those branches of government leaving it to the judiciary to deal with. One would hope this signals a change toward more proactive implementation by the executive and legislative branches, for the good.
Senator Francis: Thank you, Dr. Metallic. Mr. Joffe?
Paul Joffe, Legal Counsel, GCC (EI): Thank you, senator. I’ll start by saying that I fully agree with what Naiomi Metallic said, and I would like to add a few points. When we had only section 35, it was interpreted as a duty to consult. Bill C-15 includes consultation and cooperation. The second thing is —
The Chair: I’m sorry, Mr. Joffe. Your time has expired. I’d like to turn to Senator Stewart Olsen.
Senator Stewart Olsen: My question is to Grand Chief Bosum. On a personal note, I congratulate the Cree Nation and all of you for raising issues that I never understood. I’m old, so this goes back to the 1970s. Congratulations for that. It was a fantastic deal — with the province, not the feds.
Yesterday we received a brief from Alexander First Nation and Treaty 6 Territory. They raised concerns about the effect of this bill on their sovereignty and their inherent jurisdictional authority. They have served a notice of non-consent. If this bill is passed, it will herein be deemed an imposition upon Alexander and a breach of the obligations created by Treaty 6.
You feel strongly we should proceed and that we shouldn’t try to amend the bill, but others feel equally strongly that we should not proceed and that we should amend. What do we do with these opposing views, sir?
Dr. Bosum: I think it’s about finding solutions. Any treaty, any bill, can be improved through dialogue and understanding the purpose of these requests and finding ways to accommodate.
I believe it’s all about inclusion. We found a way to implement our treaty, and that was through dialogue. We had the framework, which was the treaty, and now we’re able to assume the responsibility of governance, control our own education, health and many of the elements in the James Bay and Northern Quebec Agreement.
I believe it’s creating this format, which UNDRIP provided, that would allow the dialogue between the provinces, First Nations people, industry and, of course, with the federal government.
Senator Stewart Olsen: Thank you, chief. I wouldn’t want to think that some consents are weighted differently than the consents of others, though. How do you feel about that?
Dr. Bosum: I’m sure that there are people who do have legitimate concerns because of what they’ve experienced. It’s through learning from each other and how to do things better. I’m not saying that the Cree is a perfect model, but we’ve certainly found ways.
Senator Stewart Olsen: It’s pretty good. Thank you.
The Chair: Thank you, Grand Chief.
Senator Pate: Thank you to all the witnesses for appearing.
My question is first for Dr. Metallic and then if the chiefs would also like to expand.
As you’re well aware, some have alleged, and Senator Stewart Olsen just alluded to this, that the rights protected and affirmed by Bill C-15 will result in economic uncertainty and decreased business in some communities. You and Mr. Joffe are clearly on the record as indicating that the opposite is true — that Bill C-15 will result in greater certainty and less litigation. Could you please expand on that in terms of how you see the UN declaration creating a greater likelihood of, for instance, decisions like Sparrow being impacted and the living tree developed in a more positive way for all in this country?
Dr. Metallic: As I said, senator, it will lead to a paradigm shift in terms of seeing each other more on a nation-to-nation basis as opposed to a sovereign subject, which is how a lot of our current legal system is framed.
I do think it will lead to more certainty and more discussion and reconciliation. In fact, some of our current section 35 doctrine leads to a ton of uncertainty. The duty to consult, the way that it is framed with a spectrum where the degree of consultation changes based on all the facts, there is always disagreement. Since Haida, there have been some 700 cases debating and litigating the duty to consult. There have been scholars. Former Ontario attorney general Michael Bryant actually wrote a paper that said that consent would create far more certainty because people know where they stand.
I think what people have difficulty with is they think it creates some sort of binary. Right now, the binary is that the Crown has all the power and the Indigenous people have no veto. The veto is with the Crown, and people think that FPIC will somehow switch that. It’s not that that is going to happen. Now negotiation will be nation to nation and discussion, as our colleagues on the panel, Grand Chief Bosum and Mr. Yakeleya, have spoken about. It’s that paradigm shift. It will not be an either/or binary of who has the veto. It’s not that. It’s talking to each other and coming up with resolutions that work for everyone. Thank you.
Senator Pate: Thank you.
Senator Forest-Niesing: I’d like to follow up on the discussion of the notion of FPIC. There has been much discussion about it, as you know. This binary concern that Dr. Metallic has just alluded to is consent versus right of veto.
Professor Joffe, you were making a similar comment about “consultation” being accompanied by “collaboration” in the wording, and the meaningful consultation that would result from a collaborative approach.
Many have expressed some confusion about how we would go about ensuring that we have everyone at the table who should be at the table. We’re hearing nation to nation, but we’re also hearing about the diversity within Indigenous groups. We’re also hearing from some who have concerns about one organization not being in a position to bind their group.
Given that diversity — and Grand Chief Bosum you mentioned Indigenous governments — how do we ensure that we have everyone at the table who needs to be there?
Dr. Bosum: Thank you very much for the question. What we’ve established with the province and with Canada in our treaty is a process you’ll find in section 22 of the James Bay and Northern Quebec Agreement. It is where all projects that are being proposed in our traditional territory go through this environmental process. There is a structure that’s in place where the Cree sit with representatives of Quebec, and in cases where it deals with waters, we have federal representatives.
There is a very lengthy process where the proponents have to present their projects. They have to provide reasons for any potential impact or mitigation and so forth. It’s a process where it allows the Cree people the usage of the land, to be able to express their concerns and even propose solutions to better the project or to reduce the footprint of the project.
Senator Hartling: Thank you to the witnesses for your excellent testimonies, especially from different parts of Canada. It’s interesting to hear your different views. We’ve heard many different things, so it’s interesting to weigh each area of Canada and the different groups.
Dr. Metallic, I liked what you said about touching on the resilience and the fears that people have and how when laws do change the sky doesn’t fall, but we tend to get in the mode of, “my gosh, if we change that, everything will go downhill.”
What do you think is causing the resilience, and how can we move forward on bringing people together so we can move towards reconciliation and move bills like Bill C-15 into law? What do we need to engage more people in the human rights aspect of this? Thank you.
Dr. Metallic: That is a good question. I think the fear comes from lack of knowing; ignorance about what’s going to happen. Our education system, by and large, does not prepare many of us to really engage on these questions.
We don’t have a ton of education on human rights. We don’t have a ton of education on Aboriginal people. We have been engaging at my law school for the last five years on really taking seriously the Calls to Action on the education of our students, and I am finding it is making a huge difference in their ability to think through issues and engage. Reading essay upon essay on my exams that talk about how unfair the Doctrine of Discovery is and that it needs to be replaced in our law; hearing that come from dozens of students is breathtaking. It is possible, and people are able to move. They just need to be given the tools.
I think we need a big push on education in various sectors, not just at the elementary and secondary levels but also professionals, MPs, lawyers and judges need this education. I think that will be a big part of that shift.
Senator Hartling: Thank you very much. Just to add to that, I am proud that Dalhousie is doing that because I live in Atlantic Canada, so thank you for that.
Do you know of other universities across the country that are doing similar things?
Dr. Metallic: Yes, there are many now, and some are teaching Indigenous laws as well. I would say the majority are now doing TRC-based education based on Call to Action 28. It’s wonderful.
Senator Hartling: Thank you very much.
Senator Anderson: My question is for Dene National Chief Yakeleya. In light of your recommended amendments, is it something that can be addressed in a national action plan? What do you foresee as a challenge or a benefit to Canada in recognizing Indigenous governments and having self-government holders at the table with the federal and provincial governments? Finally, would you support the bill without the amendments?
Mr. Yakeleya: Thank you, Senator Anderson. The ideal wish of the Dene is to come to the table with Canada on an equal footing. I find that we have this opportunity through Bill C-15 to work with Indigenous people across Canada as the true landowners, that we’re going to share our land and our way of life. For too long we have been put aside. This is an opportunity, the ideal “I have a dream” kind of concept.
I support the bill and I do want to know there are important amendments. That’s why we’re having this discussion this morning, for the Government of Canada to look at where we can improve it, such as section 25 of the Charter of Rights recognizing Indigenous governments. When we go on the land, we always come together and talk about how best we will survive together as a people. This is no different than having Canada come to the table with Aboriginal people and see how we can live together in a world that is beneficial to our children. Thank you.
The Chair: Senator MacDonald is next.
Senator MacDonald: My question has been answered, so I will wait for the next panel.
Senator Tannas: My question is for Grand Chief Bosum. Certainly, the model that you have built over many decades is one that’s greatly admired by so many people, including myself.
On the issue of FPIC, and building a little bit on Senator Forest-Niesing’s question, I’m now kind of past the idea of what is consent. I think it has been explained. We also got an assurance from the minister that in a two-year period, work will be done in consultation with Indigenous people to try to provide some further clarity around consent.
The other issue for me is “who.” We all watched the Coastal GasLink Wet’suwet’en situation, where the duly elected governments, 20 of them, signed agreements, and it was a group of unelected folks who stopped the whole thing in its tracks and created a national situation.
I’m interested to know, Grand Chief Bosum, how this issue of “who” within your own community, how that understanding exists. Have there been problems? Do you see anything in UNDRIP that we should be concerned about as we move to the next phase of seeking clarity around this issue of who actually gives consent? Should we be clear in your experience and with your success?
Dr. Bosum: We have a process that once a project is identified, we create committees at the community level and we identify all the families who would be affected. As I mentioned, we cover an area of 400,000 square kilometres, and it’s composed of over 400 family subterritories. So when there is a project, we know where the project is and which families are impacted. We create a process where the promoter provides as much information as they can, so that the impacted families are well aware of the project and its impact.
Once the families have discussed it, then of course it goes to the political leaders, which is the chief and council of each community. Eventually it’s the nation — the 11 community chiefs coming together — and they make the final decision on whether the project receives social acceptability.
Senator Tannas: Thank you.
The Chair: Thank you, Grand Chief. We still have a few minutes left. Senator LaBoucane-Benson, do you have a question?
Senator LaBoucane-Benson: I will actually pass my question on to Senator Patterson because I think Chief Yakeleya did not finish what he wanted to say.
The Chair: Senator Patterson, we still have a couple of minutes left.
Senator Patterson: Thank you, Mr. Chair and my colleague. Yes, Grand Chief Yakeleya, we’ve just talked about the co-management regime in the North and how it’s working well, and there was a reference to the Wet’suwet’en situation. I believe that our co-management processes in the North can show the way south of 60.
With the Wet’suwet’en, as Senator Tannas said, a small group of unelected hereditary chiefs challenged a project agreed to by every elected chief and council along the route, and approved, in that case, by the provincial regulator. This seemed to undermine the existing governance and the existing regulatory regime.
I want to ask you, looking at the Wek’èezhìi Land and Water Board working well, is it your understanding that Bill C-15 will not disrupt, undermine or weaken those mechanisms that have been won in the hard-fought Tlicho claim negotiations? Is it your view that Bill C-15 will not interfere with those existing processes negotiated by Northern people?
Mr. Yakeleya: Thank you, Senator Patterson. It’s my view that Bill C-15 would support and enhance. If there are some difficulties with the Tlicho — as you know, they strongly fought for their own government — Bill C-15 may strengthen their self-determination and having their rightful place within the Constitution of Canada. Bill C-15 is a process, as it’s stated in the 46 articles of the agreement that these laws are going to be consistent with the laws of Canada and ensure that these actions are going to work with the governments.
My issue with Bill C-15 is that it highlights municipalities. That is a colonial government system. We’re not recognizing our Indigenous band governments, and that has been a long-stated issue. Why are we listing the municipalities that are already under the provincial and territorial governments? These are not governments of our choosing. The Tlicho have their own governments.
I believe that Bill C-15 would strengthen or support them for their own self-determination as to where the Indigenous people want to be with all of the powers that they have negotiated. Thank you.
The Chair: Thank you, chief.
Senator Patterson: Thanks very much.
The Chair: The time for this panel is now complete. I wish to thank our witnesses for meeting with us today. I wish to thank Chief Yakeleya, Grand Chief Dr. Bosum, Mr. Joffe and Dr. Metallic.
I wish to welcome our witnesses this afternoon: Mr. Russ Diabo and Ms. Crystal Smith, the Chief Councillor for the Haisla Nation. Mr. Diabo and Chief Smith will provide opening remarks of approximately six minutes, which will be followed by a question-and-answer session with senators for approximately three and a half 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 raise-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-up to questions should be submitted to the committee clerk no later than May 30, 2021.
Committee staff will advise the chair — myself — via text when there are 10 seconds remaining for the speaking time of both witnesses’ introductory remarks and the senators’ question-and-answer time. I will do a 10-second countdown with my time, five and then zero, and I will advise when time has expired.
I wish to thank our witnesses. I would like to invite Russ Diabo and Chief Crystal Smith to present. First, Mr. Diabo.
Russ Diabo, as an individual: Good day. Thank you for the invitation to present to your committee today.
I am here as a spokesperson on Bill C-15 for three Indigenous activist networks: Defenders of the Land, Idle No More and the Truth Before Reconciliation Network. On December 11, 2020, our Indigenous networks issued our full analysis of Bill C-15 and recommended to Indigenous communities and nations to reject Bill C-15.
It is our opinion that the federal UNDRIP Bill C-15 must be reviewed and considered in the broader context of the Trudeau government’s record of stealth and deception in the treatment of Indigenous communities and Indigenous nations for the past six years, particularly the federal government’s unilateral development of a Canadian definition of the UN Declaration on the Rights of Indigenous Peoples. This constitutes massive, unprecedented changes to policy, law and structure, bypassing Indigenous peoples and nations who are the proper rights holders.
Using the three national Indigenous organizations, modern treaty groups and many band councils, who are in federal secretive top-down discussions — a number of them who are already participating in falsely named self-determination negotiation tables across Canada — moreover developing legislation during a global pandemic, while most Indigenous communities and nations have been in their communities trying to protect their families from COVID outbreaks, is an egregious act.
How do you justify doing engagement on a federal law that will have lasting intergenerational impacts during a pandemic when many Indigenous communities and nations don’t even have the capacity to respond or analyze properly how their rights will be impacted? Many don’t even have access to Wi-Fi.
In 2016, Canada showed how qualified and limited its support for UNDRIP is, trying to make it subject to and subsidiary to national law. Then-Indigenous Affairs Minister Carolyn Bennett told the United Nations Permanent Forum on Indigenous Issues, “We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution.”
Canada believes that our constitutional obligations serve to fulfill all of the principles of the declaration, including ”free, prior and informed consent.“ We see modern treaties and self-government agreements as the ultimate expression of free, prior and informed consent among partners.
Since forming the government in 2015, the Trudeau government has been developing a domesticated Canadian definition of UNDRIP. For example in April 2016, then-minister of Natural Resources, Jim Carr, told the Standing Committee on Indigenous and Northern Affairs: “. . . the government is in the process of providing a Canadian definition to the declaration.” He also said, ”The government is currently in the process of providing greater clarity to these definitions . . .” and ”We are going to get there by following a process and a regulatory regime. . . .”
In May 2016, before Minister Bennett stated Canada’s qualified support for UNDRIP, then-minister of Justice, Jody Wilson-Raybould, told the UN Permanent Forum on Indigenous Issues:
There is a need for a national action plan in Canada, something our government has been referring to as a reconciliation framework.
And we do not need to re-invent the wheel completely. . . . Within Canada, there are modern treaties and examples of self-government — both comprehensive and sectoral. There are regional and national Indigenous institutions that support Nation rebuilding — for example in land management and financial administration.
Following the 2016 statement to the UN Permanent Forum on Indigenous Issues, then-Justice minister, Jody Wilson-Raybould, told the 2016 AFN chiefs assembly in Niagara Falls:
. . . adopting the UNDRIP as being Canadian law, are unworkable and, respectfully, a political distraction to undertaking the hard work required to actually implement it.
She also said, “Ultimately, the UNDRIP will be articulated through the constitutional framework of section 35.”
Canada has made it clear it wants national laws, many of which violate Indigenous rights, to prevail over UNDRIP. The federal Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, Bill C-15, is a sleight of hand that promises to increase and expand Indigenous rights but actually accomplishes the opposite. The main sections of Bill C-15, particularly section 2, maintain the common law interpretation of section 35(1) and section 35(2) of the Constitution Act, 1982, which is heavily based on the colonial Doctrine of Discovery.
The application of this colonial doctrine has resulted in a number of problems, legal interpretations and case law based on section 35 of the Constitution Act, 1982, that negatively impact daily life on the ground for Indigenous peoples and nations in Canada, including: the imposition of Crown sovereignty over Indigenous peoples; self-government rights; disregarding Indigenous laws and legal traditions; establishing that the Crown has ultimate title to land; the costly, onerous burden of proof imposed on Indigenous peoples and nations to establish their rights in Canadian courts; the racist and frozen-in-time Van der Peet test for establishing Aboriginal rights; the ability for the Crown to infringe Aboriginal rights based on the Sparrow test, and; the erosion of the duty to consult and accommodate to nothing more than a procedural right that is reviewable based on administrative law principles through strength of claim and depth of consultation assessments by the federal and provincial governments.
By subjugating UNDRIP to section 35, the government has taken away all the rights the declaration was designed to recognize. Under section 35 of the Indian Act and other federal laws directed at First Nations and Indigenous peoples, Indigenous peoples are not recognized as part of self-determining nations.
The Chair: Thank you, Mr. Diabo, your time has expired. I would like to turn to Chief Smith for her opening remarks.
Crystal Smith, Chief Councillor, Haisla Nation: [Indigenous language spoken]. My name is Crystal Smith. I’m the elected Chief Councillor of the Haisla Nation. I just said good morning in my language.
I would like to take the opportunity to thank you for allowing me to speak in front of you today. In terms of the statements being made, I would like to start out by saying, in case I get cut off, that generally, people want success. When I say people want success, I’m speaking with regard specifically to my community.
Our vision for our nation has always been to build strong, prosperous community members. In order to do so, we need to provide opportunities for independence and independent members. That means coming back to rebuilding, reigniting our cultural identities and being provided opportunities for education, capacity and lifelong careers.
I had the privilege of sitting in on the last panel and listening to the discussions that took place there. I do not want to reiterate anything, but I agree fully with the majority of the panel members who did speak. What I want to speak about is the impact this will have on people.
Right within our territory, we successfully had the biggest private investment in Canada’s history through the LNG Canada project. Now, the difference is that our nation isn’t new to industrial development. We have sat here on the sidelines with different proponents in our territory, and through LNG Canada’s project, we have actually been active participants in this project.
We have seen that project through an FID along with Coastal GasLink. I’ve been a part of this project since the beginning introductions to our territory, and I have seen first hand the success not only of our Haisla members but also within our territory, within the region, in being able to provide solutions for not only our community but for any types of programs and services that help deliver improved quality of lives.
We have been able to re-establish our relationships with neighbouring First Nations communities. I took part in an LNG Canada meeting a couple of days ago where they gave us information about the stats of employment opportunities, specifically about their project on site. There are 270 First Nations members working on site currently. Of those 270 members, 60 are Haisla. I think that speaks to the significance that when economic reconciliation is successful, it reaches neighbouring communities and helps them provide opportunities for independence as well.
Far more often than not, when I get asked to speak at these events, it comes down to policies and implementation. I think what is often lost in the conversation are the people. For example, in my first job out of college, I worked at an elementary school. There was a young girl. Her name is Ashley. I witnessed her grow up. I have continued to witness her and kept connections through social media. Just recently, she had a daughter who is the same age as my grandson. I watch her struggle through her posts on social media. She is a single mom. She had no formal education. She didn’t have a job.
One of our partners — we have been able to establish a partnership with Ledcor through economic development — put on an education training session that gave our members and those of surrounding communities an opportunity to develop the skills for an entry-level job on a construction site. Ashley was 1 of 12 people and the only female in that group. I’ve seen her succeed and seen her participate within a project has instrumentally changed her life. It not only has changed her life, it has changed her daughter’s life.
To be able to witness the impacts of that one project and the impacts that our participation, our active participation, in this project has on members and surrounding community members is — it gives me the strength and inspires me to continue doing what we’re doing, and to provide solutions through economic reconciliation to our members and surrounding communities.
I think that’s all I have.
The Chair: Thank you, chief. I would like to open the floor for questions. Since we only have two witnesses today on this panel, we will extend the question-and-answer time for each senator to 3 minutes and 30 seconds.
Senator LaBoucane-Benson: Chief Smith, thank you so much for what you have shared today. My question to you is: As a rights holder, do you feel Bill C-15 will erode your community’s rights?
Ms. Smith: No, I don’t. I don’t. As I alluded to in my opening comments, our nation is not new to industrial development. We sat on the sidelines and watched proponents and other communities become successful when we were left to the side of the table and not been an active participant.
I want to start off by saying that the fear of implementing the free, prior and informed consent — I don’t want to paint LNG Canada as a project that started off in a bed of roses. That is completely far from it. I was actually the assistant to the chief councillor back when they were first introduced to our community, and I remember coming back to work and being told that communication was not going to occur and that the relationship had not started off in a very meaningful way.
Through very hard work — not only on our nation’s part but the participant’s part and the government’s — we were able to re-establish a relationship that was a strong foundation where hard discussions happened. That’s not to say that there were not opportunities for it to go sideways again. But we were both willing to sit down and we were able to take the responsibility as the rightful land owners of our territory to learn about a project. That took many years and many people, so when it comes to any other type of — LNG Canada isn’t the last proponent in our territory. We have had many interests in our territory because we have such a great port that doesn’t freeze and very short shipping lines, so when it comes to Bill C-15 eroding our rights, no.
Senator LaBoucane-Benson: Do I have any time left, chair?
The Chair: Yes.
Senator LaBoucane-Benson: Based on your experience in working with LNG and the success you have had, how would you advise the government on the way they consult with rights holders around the clarification of FPIC? Would you have any advice for them?
Ms. Smith: Sorry, can you say that again?
Senator LaBoucane-Benson: One of the things they will be working on, potentially, in the action plan is to clarify FPIC — maybe define it or create principles of how to work within free, prior and informed consent. So when the government is out consulting with rights holders, how would you advise them to consult?
Ms. Smith: I believe a senator had asked something with regard to whom to consult and how that is decided. That is the responsibility of communities. I get my mandate from my community. It is through that process of having membership — informed —
The Chair: I’m sorry, chief. The time has expired. We will move on.
Senator Patterson: Mr. Diabo, I read your exposition in the Indigenous Policy Journal regarding consultation on this bill. You said:
Left out of this process, as they always are, were Indigenous rights holders—the actual Indigenous Peoples from across the country. They were not consulted or even shown a draft before the Bill was tabled and now the Trudeau government is planning to rush Bill C-15 though the House of Commons in breakneck speed when it resumes in January 2021.
We heard the same sentiments from several other witnesses. A submission from the AFNQL stated that they felt they were under duress to accept this bill. Idle No More, Defenders of the Land or other grassroots networks have publicly called for this bill “deeply flawed” and said unequivocally that it should be rejected.
But we have been told this bill is better than no bill, and that we should not use our powers to amend bills to address concerns raised, because, as Senator LaBoucane-Benson just said, we should trust that everything will be taken care of in the action plan process.
What is your advice on this? Should we just let it go through or should we try and address the concerns you and others have raised? Thank you.
Mr. Diabo: If Bill C-15 becomes federal law, we will recommend to Indigenous communities and nations that they organize themselves to resist this law and exercise their sovereignty in self-determination on the ground, challenging the jurisdiction and authority of the Canadian state and its constituent governments, the resource-extraction corporations or Crown corporations operating on Indigenous lands, without Indigenous people’s free, prior and informed consent.
Now, as to your question, you heard from the previous witness on the panel saying that, technically, this bill is not required because UNDRIP already applies to Canada as international standards.
In terms of the consultation or engagement process, Canada has been dealing with this. They told you this; I believe officials, even Minister Lametti or somebody else said that they had been talking to key groups, and they identified the key groups as the three national Indigenous organizations and modern treaty groups. There are others, but those are the key groups they have identified. That’s who they really had engagements with.
But even the Canadian courts have said the rights holders are the people on the ground. They are the ones who have the Aboriginal title or treaty rights to the lands, territories and resources. They have been bypassed.
I’ll give you an example. When the Constitution was shiny and new in 1982-83, they had a special all-party parliamentary committee on Indian self-government. That committee travelled across the country and held hearings in all the regions where people could have access and submit briefs on what they thought of self-government and getting out of the Indian Act. Something similar could have been done by the federal government and Parliament on the UN declaration.
I think they need to withdraw this bill, and go back and talk to the people on the ground.
The Chair: Thank you, Mr. Diabo.
Senator Forest-Niesing: Thank you, colleagues, for allowing the order to be changed slightly to accommodate my tight schedule today.
Thank you to our witnesses, particularly Chief Smith. I found your testimony incredibly touching, and it really put a human lens on all of this. We can so easily get bogged down in the legality and the technicalities. When you talk about the impacts on people and lives — not just in the present but also future, for children in particular — it sure puts things into perspective. Thank you for that.
I would like to give you an opportunity to expand on what you had started answering concerning the mandate that you seek from your community for the purpose of then participating in the anticipated discussions that will occur following the implementation of this bill, if it passes.
Then I would like to hear from Mr. Diabo, particularly. I appreciate that you consider you have been bypassed in the consultations thus far, but what if any plan do you have in the event that this bill is passed to work toward ensuring you are not bypassed again, and that you may participate actively and fruitfully in discussions at the table at the appropriate times?
Ms. Smith: Thank you for that opportunity to expand on that further.
I know the Wet’suwet’en were brought up earlier in conversation, and our community was no different from that. Not even 10 years ago, there were issues between our hereditary chiefs and our elected leaders that actually resulted in a court case that essentially left our community devastatingly split, where families were no longer talking to each other.
My perception of that whole process was that our members had enough of that divisiveness. They had enough of that type of impact when it impacts family connections and ties; that our communities are so small that families are the most focal aspects of our lives. Our members just had enough of it, where they took it upon themselves to be empowered, to say enough is enough. They chose who was going to be representing them. It was essentially the elected body that would be representing.
Now, it is definitely known in our community that active rights holders, titleholders and the negotiators are our elected representatives of our community.
Mr. Diabo: Just to respond to the question, we have land defenders and water protectors in our networks. They are active on the ground right now in several regions of the country, including British Columbia, Ontario and in the Atlantic provinces.
You need to focus on Article 18. You focused on Article 19 of the UN declaration, which talks about changes to policy and law with the representatives, but Article 18 says Indigenous peoples have a right to decision making through their own Indigenous procedures and institutions. Bands and band councils are not Indigenous institutions. They are colonial constructs, and for our networks, we have social media access —
The Chair: Sorry, Mr. Diabo, but time has expired again.
Senator Francis: This question is for Chief Councillor Smith.
In your experience, what are some of the benefits of integrating Indigenous ways of being and doing to business practices, especially in the context of the use, management and conservation of natural resources?
Ms. Smith: Thank you so much for that question. I just wanted to say that, as elected leaders, we are definitely protectors of our territories, and I thank you so much for this question.
Through our negotiations we’ve taken it upon ourselves to be actively participant in any permit that has been applied for by LNG Canada. One example of how we become an active part is participating through and setting up proponent discussions where it actively allows, not only our technical educated Haisla Nation members who are trained in environment and lands, but also takes into consideration our cultural aspect.
Within our territory, a huge staple of our culture and traditional foods is the oolichan, which has been decimated by industrial development in our territory. Through this project, we’ve lobbied the federal government, along with the proponent, to put in our statements on how valuable the oolichan is to our culture. And through that process we were able to develop programs and studies that we’re currently putting into action to restore the oolichan to our territory.
That’s one example of how we’ve been able to have our cultural ties, but also being active in regard to the timing of certain work on this project. We have agreements that there are certain windows within the oolichan spawning season, in particular, that weren’t part of DFO’s priority list, which we have now been able to implement and say we can no longer impact this fishery to our community.
Senator Francis: Thank you.
Senator MacDonald: I will direct my question to Chief Smith. In the spring of 2019, I travelled with both the Energy Committee and the Transport Committee to northern Alberta and British Columbia, discussing the impact of Bill C-48 and Bill C-69. I met with a lot of First Nation people who were frustrated with the barriers to their economic development. In that light, I ask you, similar to a question asked on the earlier panel — your community, Haisla Nation is one of 20 elected band councils that signed an impact and benefit agreement along the Coastal GasLink pipeline. The country felt the effects of the project’s disruption by the Wet’suwet’en hereditary chiefs. Justice Assistant Deputy Minister Laurie Sargent explained in an all-senators technical briefing that “Indigenous rights are not absolute,” and said there needs to be a space for weighing — and other pressing social needs — the rights of others.
Do you think you require a renegotiation or an amendment of any deals or processes that the Haisla Nation is a party to? Thank you.
Ms. Smith: Do I feel we need a new deal with Coastal GasLink? Is that the question?
Senator MacDonald: Do you believe that you require a renegotiation or an amendment of any deals or processes that the Haisla Nation is party to, in order to protect the economic development you’re trying to trigger in your own backyard?
Ms. Smith: I would have to say that it is successful. I mean, the project is — I don’t understand why —
Senator MacDonald: Are you afraid that the progress you’re trying to achieve is going to be arrested in any way or thrown off the rails?
Ms. Smith: At certain points, I don’t sleep well at night, in regard to that project and the uncertainty of not having the mandate from the community, most definitely. And I wanted to make the statement in regard to the colonial implication that’s being put on us as elected leaders. I do not run for this chair to make any harm or impact to my people today or future generations or to our environment. The elected leaders along that Coastal GasLink pipeline, specifically within the Wet’suwet’en territories, are my good friends and I have developed a great relationship with them over the years through this project.
I want to say, on their behalf, that they do not run for seats in order to negatively impact our people. It has been far too long that they have worked, and many chief councillors and councillors before them have worked, to get our people to this position. There are so many other economic opportunities that have passed us by because we did not have a rightful seat at the table. Now that we’ve had this rightful seat at the table as elected leaders, and have our revenues generating back to our communities and employment opportunities generating back to our communities, we are providing solutions on the ground for our people that we’ve never seen before.
Do I have concerns in regard to that project? I do. However, what needs to be stated is there is success we are seeing today in our communities.
Senator MacDonald: Thank you.
Senator Stewart Olsen: Mr. Diabo, your presentation raised my concern over the proper consultation process, and you’ve said:
There is good reason for the government’s haste. They do not want to give Indigenous people—apart from the small crew of federally funded Indigenous leaders—time to look at this profoundly flawed Bill in detail.
I also note that while the government has taken pains to highlight, they continue to engage throughout the legislative process. This does not satisfy the prior component of FPIC.
If that were the process of consultation in the drafting of the bill, would you anticipate the same approach in relation to the formulation of the action plan, and do you think it’s possible to have a fulsome discussion with all rights holders in a two-year time frame?
Mr. Diabo: We certainly have the communication tools and methods to do that. For those who have access to Wi-Fi, Zoom calls are available and that’s how the government is doing consultations now with leaders across the country.
The Assembly of First Nations is not a representative body and I’m sure you’ve heard that from other chiefs already. I worked at the Assembly of First Nations under three national chiefs and I’m familiar with the charter, and it’s a chief’s organization, it’s not a people’s organization. That’s the problem. It’s based on the Indian Act system so all the band councils that you’re talking to, the chiefs you’re talking to, are elected but they don’t really represent what we’re hearing through our networks from the grassroots peoples and their views on what’s happening, for example, with this bill and other things.
The negotiation of the action plan is to be in consultation and cooperation with Indigenous peoples, but over the past six years we’ve seen it has been a top-down, secretive approach with the national Indigenous organizations, the modern treaty groups and various band councils at various federal tables. Those are secret talks. People don’t even know what’s being discussed at those recognition and self-determination tables, which are right across the country. They put $100 million into those discussions, yet the people don’t know until agreements come out and they are asked to vote in referendums on them.
I predict you’ll see a lot of resistance if this bill becomes law because they won’t accept an action plan negotiated by representatives that aren’t actually talking to them. Even the courts have said the people on the ground have the rights. It’s not the advocacy lobbying bodies like the Assembly of First Nations or the regional bodies that are part of AFN.
Senator Stewart Olsen: Thank you, sir, that would be a great disappointment in this bill coming forward. Thank you.
Senator Pate: Thank you to the witnesses. My question for Chief Smith and Mr. Diabo. If this bill becomes law, how would you see, other than the protests that you’ve discussed, getting all parties who should be part of decision making to the table? What would be your recommendations?
Mr. Diabo: What I have been advocating is for the development of self-determination plans from the ground up.
Right now, the way the system works is that the duty to consult, which this bill will entrench into law, is based on the strength of claim assessments, where mostly provincial, but federal governments too, have consultations with communities about projects or activities on traditional lands, and the communities are expected to have the information to respond. Many of them don’t have the cultural and historical information to show the strength of claim, for example, the potential for having Aboriginal title or rights.
All communications the government receives — emails, letters and correspondence — they’re assessing that for their strength of claim assessment. If it’s a weak assessment, then all they do is give a notice that this project or activity is happening. If it’s a strong assessment for a potential right, then they have to do a depth of consultation analysis based on the strength of claim.
All the bands across the country are facing this. Most bands get some funding from the provinces to respond to these consultation requests for projects in their territories, but it’s not sufficient funding. They need human and financial capacity support to develop plans — and not just reactive plans like you talked about, but forward-looking plans about what say they will have. The provinces aren’t even part of this bill. What say will they have in the planning that regional governments in the provinces are doing, which are alienating lands from Indigenous communities? That’s happening in British Columbia and across the country.
Bill C-15 and the action plan, as far as I can see, will be based on existing policies because that’s the way it has been for the last six years at the negotiating tables. I don’t see anything changing.
Senator Pate: Thank you.
Ms. Smith: I think it’s up to each individual community in terms of how to be in a collective and have grassroots. Far too often I find that throughout these discussions, the responsibility of the nations and the people, the membership, to do their work in order to progress their nations — the situation of no change or the implementation of different laws, acts and policies doesn’t help the grassroots people, period. In order to make progress, it has to be a collective. I believe that is the responsibility of not only elected leaders but also hereditary leaders.
The Chair: I’m afraid your time has expired, Chief Smith.
Senator Coyle: Thank you very much to both our witnesses.
Mr. Diabo, your mistrust of government is definitely palpable, and we know that mistrust is shared by others, for a variety of reasons.
You’ve stated that, if passed, Bill C-15 will be used by the Government of Canada to reinforce the status quo, which is very problematic.
Now the government has stated their intention to do the opposite. We’ve heard from other witnesses, for sure, that they believe Bill C-15 will do the opposite of reinforcing the status quo; in fact, it will change things for the better.
If the bill is passed and the government follows through on the requirements set out in Bill C-15, do you believe at that point the status quo will remain? Could you elaborate on that? I would like to ask the same question to Chief Councillor Smith about what she thinks the outcome will be if Bill C-15 is implemented.
Mr. Diabo: Thank you for the question.
Yes, I think the status quo will remain. This isn’t the first time I’ve dealt with this. I was the AFN Indian Act Amendments Coordinator in 1996-97, under a previous Liberal government. We assessed that bill as being regressive because it imposed more national controls and standards over bands and band councils.
The chiefs, after we explained it, rejected that. We campaigned against that bill, which then-minister Ron Irwin was pushing under the-prime minister Jean Chrétien. In the end, they said it would be optional. When they started out, it wasn’t optional, but in the end they called it Bill C-79, the Indian Act Optional Modification Act. Our experience is that when Ottawa says something will be optional, they make it the only option. They control the funding.
You have to realize that this new fiscal policy is tied to the 10 principles they introduced in 2017 — unilaterally, without consulting — dissolution of the Department of Indian Affairs and the creation of two new Indigenous departments, without consultation. They didn’t even consult their partners, AFN and others. This has been publicly admitted.
Now they have this “Indigenous governing bodies” definition, which they’re both using, to mean a council, a government or body mandated through section 35 rights. By “council,” they mean a band council; and by “government,” they mean an Indigenous government, [Technical difficulties] only if you sign a self-government agreement or a modern treaty. Otherwise you are not federally recognized. They don’t recognize Indian Act bands as being self-governing bodies because they are under the discretion of the department and the minister.
Minister Bennett said it, as did former Justice Minister Jody Wilson-Raybould. They don’t have to reinvent the wheel. They have modern treaties, self-government agreements and the national land and fiscal institutions, which they call Indigenous institutions, but they are appointed by Governor-in-Council and accountable to the federal government. They’re not our institutions, but they are using those national institutions to promote assimilation into the property and tax systems of Canada. Meanwhile, they’re not addressing, for example, Article 26, restoration of lands, territories and resources. Canada’s land claims policies are in breach of that standard. They have not addressed that, nor Article 28, which says that if you are not going to restore the lands, territories and resources, there should be restitution.
The Chair: I’m sorry, Mr. Diabo. The time has expired again.
Senator Anderson: My question is for Mr. Diabo. In your article “Countering the Trudeau Government’s Plan to Domesticate UNDRIP, FPIC & Hijack Indigenous Self-Determination,” dated October 25, 2018, you state in your conclusion:
This whole “Nation to Nation” process is false “Reconciliation” and our Peoples have been deliberately misled and bypassed for three years in this secret-topdown approach of the Trudeau government who is using AFN, selected Chiefs/Leaders and Chiefs’ organizations!
Does your position stem from a historical distrust of the Canadian colonial system of assimilation, colonization and dispossession of Indigenous people, as well as a belief that some Indigenous groups, leaders and chiefs are co-opted, as they have been fostered in a colonial system? Do you believe the Canadian government has the best interests of Indigenous people at heart? If this bill passes, do you believe Indigenous people or groups should be able to opt out of this bill? If not Bill C-15, is there some other legislation or process you would propose, and how would that look?
Mr. Diabo: I have several decades of experience in dealing with the federal government and their co-optation strategies. You have to figure out, first of all, that because of the application of Canada’s policies since the 1980s land claims and self-government, there are different First Nations that have defined their section 35 rights through self-government agreements and modern treaties. Many have not. There are unresolved Aboriginal title and treaty issues, and that’s why there is concern from historic treaty groups who have sent briefs or appeared before the House of Commons committee about this bill.
I’ll give an example: the inherent right policy of the federal government. In 1993, the federal Liberal Party said they would recognize the inherent right to self-government as an existing Aboriginal right under section 35 of the Constitution Act, 1982. But what the Jean Chrétien government did in 1995 is they unilaterally imposed an Aboriginal self-government policy, without consultation. They claimed they did consultation, just like this Trudeau government has.
They co-opted our term. We came up with the term “inherent right to self-government.” That was discussed in the constitutional conferences in the 1980s. They co-opted that term and put a unilateral policy definition to it.
The Justin Trudeau government has done the same with “reconciliation” “nation-to-nation,” “decolonization” and “self-determination.” They’re unilaterally defining what they will federally recognize through policy as self-determination or self-government. The phrase they like to use is “We recognize the inherent right to self-determination, including self-government, as an existing right under section 35 of the Constitution,” but when you drill down, you see it’s that policy that they’re using, and that’s the basis of the agreements that have been signed across the country, and that’s the basis of the policies at the negotiating tables. It’s the umbrella policy, the self-government policy. At every single table across the country, the federal bureaucracy and the federal cabinet authorized negotiations or discussions within the framework of section 35 self-government policy.
Senator Tannas: Chief Smith, you heard me on the last panel talking about “who,” and specifically talking about Coastal GasLink.
As the government is committed to try to put more clarity around the consent issue, I note that in the UN declaration there is a mention of the principles of democracy as being important and vital. Elected bodies are the democratic representatives of the community. When we get to definitions and trying to get clarity, do you support something that points to democratically elected representatives of your community?
Ms. Smith: I can speak specifically to the Haisla Nation perspective in that response because I don’t have the answer for every other community.
When it comes to our community, we definitely have gone through the hardships of that in our own community. I think that’s the responsibility of each individual community that isn’t there yet, to take that initiative, to work as a collective for the betterment of their communities. It is not a good place for communities such as the Wet’suwet’en. As I said, we have experienced it first hand. It is not a great position to be in, and I honestly empathize with communities that are there.
Senator Tannas: It’s probably fair to say that that’s the hard work that will have to happen at the community level with the implementation of UNDRIP, and that will be an important piece.
Have you and your community, and those who came before you, observed through the years that proponents are developing the appropriate skills?
It’s hard to get a project through. It should be hard; there’s a lot at stake. Are you seeing that there are companies and proponents that are actually doing their hard work and changing the way that they think and do business in order to be successful?
It needs to be hard. It can’t be impossible, and I think that’s what people are worried about. What are your thoughts?
Ms. Smith: I am definitely seeing a transformation in the thought process. I’ve sat at our leadership table for almost 15 years now and have come across some proponents who are very interesting — I’ll use that word — to have interacted with, compared to what they are today.
That’s not to say that all of them are, but I would like to mention we have the Rio Tinto aluminum smelter here in our territory, which has been in operation for the last 50 or 60 years. I know this isn’t significant because they are already operating, but a proponent such as Rio Tinto and all the controversy that has happened worldwide with their company, they are coming around to this thought process of relationship building, and we’re developing a closer relationship with them where they are impacting our people through employment and contracts. So it is improving.
The Chair: Thank you, chief.
Senator Hartling: Thank you to the witnesses for being with us today.
First, Mr. Diabo, I can clearly hear about the mistrust. I want to acknowledge that.
My question is for Chief Smith. I want to thank you, chief, for bringing up the issue and exploring with us about the economic reconciliation and the single mom you were talking about. That’s close to my heart. In my former work I worked a lot with single moms. I want to expand on that.
Thinking ahead, if we did have Bill C-15, how do you think it might impact women and girls in communities across Canada in terms of things like violence against women or other social issues? Have you had any discussions or do you have any thoughts on that?
Ms. Smith: Yes, most definitely. This question goes hand in hand. Again, making a decision that will help progress First Nations communities is a positive thing. Nothing is ever perfect. We continuously have to work towards resolving all issues that come at hand.
Coastal GasLink and LNG Canada definitely have provided new areas of focus in our community. What we have been able to do to address social issues in our community is we are willing to partner with any entity that provides any type of programs and services that we cannot address ourselves internally.
Specifically related to women, we have a memorandum of understanding with the Tamitik Status of Women in Kitimat that provides these services to the region. Not only do we have the MOU, we actually fund positions within their entity.
This is one small example of social issues that we’re working towards to improve the quality of life of our members, but that’s far-reaching. As I stated in my opening comments, we have been establishing relationships with our neighbouring First Nations communities. I co-chair an organization called Northern First Nations Alliance, where we work directly with other First Nations communities to address the social issues that our communities experience: homelessness, mental health, culture, youth, elders.
We’re working collectively. A prime example of success is we have supported a housing initiative with the Kitselas First Nation that will actually serve each of our communities. We have been able to utilize Kitkatla, a community in Prince Rupert. Their housing strategy we have implemented here in our community.
It addresses all areas, and being able to establish those relationships with other First Nations communities in order to address these social issues on the ground is absolutely imperative. We all live within the same local region, and our people experience whatever social issue it is.
As elected leaders, in hearing and taking part in community comprehensive plans and seeing what is important to our members, and then being able to take that feedback and implement it into areas that our people also reside in, it is amazing to see and be a part of.
Senator Hartling: Thank you very much for all your hard work and collaboration. It is very important.
Ms. Smith: Thank you for the question.
The Chair: I wish to thank our witnesses, Russ Diabo and Chief Councillor Crystal Smith, for meeting with us today.
I wish to welcome the next panel of guests: Hillory Tenute, Executive Director, Canadian Roots Exchange; Matthew Norris, President, Urban Native Youth Association; Arthur Noskey, Grand Chief, Treaty 8 First Nations of Alberta; Jim Badger, Chief, Sucker Creek First Nation, Treaty 8 First Nations of Alberta; and Margo Auger, Chief Administrative Officer, Treaty 8 First Nations of Alberta.
Ms. Tenute and Mr. Norris will provide opening comments of approximately six minutes and Grand Chief Noskey and Chief Badger will share their six-minute time. This will be followed by a question-and-answer session for senators with three minutes per senator.
The first question will be asked by the sponsor of the bill, Senator LaBoucane-Benson and the second question by the critic of the bill, Senator Patterson. If other senators have questions, please signal this to the clerk. Please note that committee members will be given priority on the list of questioners. Any written follow-up to questions should be submitted to the committee clerk no later than May 31, 2021.
The committee staff will advise me when there are 10 seconds remaining for speaking time. I will do a 10 second visual count down using my two hands, and once we get to zero, I will let you know that the time is complete.
I wish to invite our guests to say their opening remarks. First, Hillory Tenute, you may now begin.
Hillory Tenute, Executive Director, Canadian Roots Exchange: [Indigenous language spoken]
Hello, senators and committee members. My name is Hillory Tenute. I am a proud Anishinaabekwe with settler descent from the Chippewas of Nawash First Nation from the unceded land of Neyaashiinigmiing, Ontario, part of the Saugeen Ojibway Nation territory.
I speak to you today as the executive director of the Canadian Roots Exchange, or CRE, from the unceded lands Algonquin territory here in Ottawa. My pronouns are she/her or they/them.
Thank you for the invitation and opportunity to speak with you today. I come here today in a position of great privilege and humility. I would not be here today without the support of my team Kim Wakeford and Megan Lewis, and especially not without permission from the youth to speak here today on their behalf. The words I speak to you today are not mine but the wisdom and brilliance of the Indigenous youth CRE is so fortunate to be connected with on matters as they relate to Bill C-15.
CRE is an Indigenous youth-led non-profit. We believe that a vision of a reconciled country is only possible through collected action and impact. As such, our mission is to provide pathways for Indigenous youth on their journey of self-determination and resiliency in an effort to advance reconciliation in their lifetime. We believe that UNDRIP is another pathway toward achieving reconciliation in what we now call Canada.
Since the introduction of the bill, the federal government has engaged with 450 individuals on their views of the consultation draft. CRE was invited to participate in one of those sessions. It was following that session in November when we realized more needed to be done in terms of engaging Indigenous youth and ensuring they are being provided appropriate tools to support them in making insightful policy decisions that impact them. I will summarize the results here, and more detailed information is available in our brief.
The youth we spoke to were clear. Implementing UNDRIP as Canada’s framework for reconciliation now and into the future will not reflect their needs and their community’s needs unless it’s done in a good, reciprocal, decolonized way. This means substantive, accessible, meaningful and continuous engagement; empowering communities to implement the declaration in their own way, and; the delivery of clear milestones and progress updates identified by the rights holders directly impacted by UNDRIP. Indigenous youth in this country understand the importance and implications of this vision, including the legal complexities UNDRIP will have on the collective and individual rights of Indigenous peoples. The youth we spoke to were clear: Those conversations need to include tangible, systemic reforms that address institutionalized racism, land reclamation and sovereignty — #landback.
In our submission to the Standing Committee on Indigenous and Northern Affairs, we recommended the following five guidelines. First, create space for Indigenous youth to lead conversations about Indigenous youth — “if it is about us, it needs to be led by us.” So often Indigenous youth are left out of policy-related conversations and decisions that impact them most. Second, empower communities to roll out UNDRIP in their own way. Third, educate non-Indigenous people about UNDRIP and Indigenous rights. Fourth, allow communities to identify their own key indicators for the success of UNDRIP’s implementation, and fifth, ensure the accessibility and transparency of every part of the implementation, including the process of documentation. We urge you to prioritize these recommendations as you study the bill and any additional amendments.
One of the other engagement sessions we held was a hackathon on the implementation of UNDRIP. During our UNDRIP hackathon last month, five teams of Indigenous youth worked together to develop policy recommendations regarding the problem of implementing UNDRIP thoughtfully. Their solutions were wide reaching, innovative, transformative and reflective of the diversity of the group. Their ideas and needs could be broadly grouped in the areas of accountability and oversight, building community capacity, and decision making and governance.
All the youth recommended some kind of independent oversight of UNDRIP’s implementation, including a national UNDRIP advisory council that would specifically advise legislators and hold them accountable to the principles of UNDRIP. In terms of building community capacity, youth agreed that implementing UNDRIP must be done in that way that empowers communities first but [Technical difficulties] resources and funds to implement the framework in their own way. Lastly, the Indigenous youth recommendations related to decision making and governance were largely value based, with emphasis on self-determination and sovereignty. Youth see UNDRIP as a tool for Indigenous peoples to have more access to decision-making processes. Implementing UNDRIP must widen Indigenous peoples’ paths to this decision-making table or create paths where they don’t already exist.
In all the work we do, we aim to hold up the strength, resilience and excellency of Indigenous youth who have participated in discussions about Bill C-15. Their views, needs and hopes for the next seven generations can only strengthen UNDRIP’s function in the settler state we call Canada.
To that end, we call upon the federal government to create space for youth to participate and lead these discussions. It will take an entire generation to unpack the systemic barriers this colonial system legacy has put in place. As we begin to plant the seeds of reconciliation, it is imperative that we have these youth leaders at the table now, because this will become part of their legacy work, to shape the future of this country — especially as it relates to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.
As a show of commitment to the project of reconciliation, we urge you to consider the priorities of Indigenous youth, which I have outlined here and in our written submission. Meegwetch for giving Indigenous youth a space today.
The Chair: I would like to invite Mr. Norris to give his opening remarks.
Matthew Norris, President, Urban Native Youth Association: Hello, senators. My name is Matthew Norris. My pronouns are he/him, and I am Woodland Cree and a member of the Lac La Ronge First Nation, signatory to Treaty 6 in northern Saskatchewan. I currently reside and work on the unceded traditional ancestral territories of the Musqueam, Squamish, and Tsleil-Waututh people within the city of Vancouver. Today, I speak to you in favour of Bill C-15 and as president of the Urban Native Youth Association, or UNYA.
UNYA is one of the largest urban Indigenous non-profits in the province of British Columbia. Its focus since its inception in 1988 has been to provide meaningful opportunities for Indigenous youth in the urban setting. UNYA strives to support Indigenous youth by providing a diverse continuum of advocacy, as well as preventative and supportive services to respond to their immediate and long-term needs.
By way of introduction, I have significant experience working on and advocating for the recognition and implementation of Indigenous rights. I have a master’s degree in political science with a focus on Indigenous rights, and I am currently midway through a PhD focusing on the implementation of UNDRIP. In 2018 and 2019, I had the privilege of attending the UN Permanent Forum on Indigenous Issues as an Indigenous peoples’ representative, speaking about issues pertaining to land rights, environmental protections and safeguard for Indigenous women and youth.
I’m a political adviser to Vancouver City Councillor Boyle and was part of the drafting team for Vancouver’s historic city council motion to begin the process to implement the UN declaration within a municipal context. Furthermore, prior to pursuing a PhD, I was a policy analyst for the Union of British Columbia Indian Chiefs for over four years.
It is with this experience I can wholeheartedly celebrate this bill as a critical and significant step forward in reconciling this country’s colonial legacy. I hold my hands up to the significant amount of work and advocacy that has preceded this day, and I look forward to the work that is still to come.
In short, I would like to make the following four points:
One, we must learn from our experiences with Bill C-262, which died on the Order Paper following strategic delays and filibustering within the Senate. Indigenous peoples and particularly Indigenous youth are falling through the gaps in our societal safety nets every day; gaps that have never been made clearer than during the COVID-19 pandemic. These lost lives are not only representative of an ongoing traumatic colonial legacy that continues to impact the lived experience of Indigenous youth and their families, but also represents lost potential that these youths would have been able to contribute to the betterment of our country and planet. These losses cannot be understated. Beginning the process to implement the rights of Indigenous peoples as articulated by the principles and standards of the UN declaration needs to be considered as a most urgent matter.
Two, I have heard many of the concerns of my Indigenous relatives, friends and colleagues about specific provisions, or lack thereof, within the bill, alongside a number of proposed amendments to be improved upon in the bill. I wish to remind those of the committee that the bill is not an end point, but the beginning of a long process that will seek to rebuild a relationship between the Canadian state and Indigenous peoples — a legitimate relationship built on consent, equality and reciprocity, which has been historically denied to Indigenous peoples. In light of this, we cannot delay this bill with numerous amendments that would risk delaying and killing this attempt to rebuild our relationship.
Three, with the recent motion by the Vancouver City Council and B.C.’s recent legislation, other jurisdictions are moving forward with the implementation of the UN declaration within their particular mandates. I have concerns that the delay in federal implementation may unduly harm the good work already being done elsewhere in the country.
Four, part of the action plan must include space for Indigenous peoples to determine their own relationships and processes between them. Colonization has had a profound impact, fracturing nations, communities and families by physically and culturally displacing our most vulnerable members from their territories and people. Our communities need to be provided the time, resources and space to heal the relations amongst ourselves as well. This work needs to be led in full collaboration and partnership with Indigenous peoples. It also must make space for work to be done between Indigenous peoples as well.
Indigenous people, particularly Indigenous youth, continue to fall through the gaps in our society. Indigenous people continue to be marginalized and oppressed across a wide range of socioeconomic identifiers, be it health, access to water, education, crime, violence, substance abuse, poverty, et cetera. Our communities hold the knowledge and the expertise to overcome these issues. We just need to be empowered and resourced to make this change.
Indigenous empowerment or the recognition and implementation of our rights to self-determination, self-government, free, prior and informed consent and participation, as articulated by the UN declaration, is how we do this work. Furthermore, the recognition of these rights holds a great potential for not only the betterment of Indigenous people but the betterment of our collective society as well. The recognition of the rights of Indigenous people can open doors to climate conscious developments and policy to greater democratic legitimacy, clear permitting and approval processes, less money spent in courts, et cetera.
This bill is not an end point, it’s a commitment to an ongoing process. The right of Indigenous people to self-determination is not a finite checkbox, rather it’s a commitment by this and future governments to a process and a reciprocal relationship with Indigenous peoples. This bill creates a significant opportunity to build strong and lasting relationships between nations, Indigenous communities and everyday Canadians. The longer we delay the bill, the more lives that are lost to the opioid crisis, the more nights Indigenous people struggling with homelessness have to sleep outside, another generation of youth who grow up in a country which doesn’t reflect them or prioritize their well-being.
This bill represents an appropriate, accountable and responsive approach to implementation. We’re all here to stay and we need to design government systems that recognize and account for that.
Thank you for inviting me to share my thoughts.
The Chair: Thank you.
Arthur Noskey, Grand Chief, Treaty 8 First Nations of Alberta: Good afternoon, senators. Our communities are Cree, Dene and Chipewyan. Our mandate is to protect, promote, bring to life, implement and sustain the true spirit and intent of Treaty 8, as long as the sun shines, the grass grows, the waters flow and until such time as Yidah should reverse. Our vision is our land, our people, our ways and the true spirit and intent of Treaty 8 are respected and honoured.
You are aware that the chiefs in Alberta passed a resolution opposing Bill C-15. The Treaty 8 First Nations of Alberta were a part of that resolution. I will reiterate our position to you here today. The Treaty 8 First Nations in Alberta do not support Bill C-15 and no amendments to the bill will change that. We do not consent to this bill.
Let me be clear in saying that we are not against a United Nations Declaration on the Rights of Indigenous Peoples. Our opposition is to Canada’s currently proposed approach to implementing the declaration via Bill C-15. Our opposition to Bill C-15 does not equate to opposition to the declaration.
In 1970, the leadership of the Indian Association of Alberta presented their response to the 1969 White Paper. Citizens Plus, also known as the Red Paper begins with this statement:
To us who are Treaty Indians there is nothing more important that our Treaties, our lands and the well being of our future generation.
That is the essence of our position today. Our treaty, Treaty 8, was first entered into on June 21, 1899. For more than 120 years we have been waiting for Canada to act honourably. It is beyond frustrating that it looks like they expect us to wait another century.
Prime Minister Trudeau continues to say that no relationship is more important to him than the one with Indigenous people. I will be honest and sincere that when we first heard this we were optimistic, but it’s clear what he means in his relationship with Indigenous organizations. Canada has taken an approach that they call a distinction-based approach, whereby it engages with the national Indigenous organizations. In this approach, Canada co-develops agreements, approaches and legislation with their Indigenous partners for the First Nations people, which means the Assembly of First Nations. This is the wrong approach and it is resulting in defective outcomes that do not truly respect and honour a nation-to-nation relationship. We saw this with the development and subsequent passage of Bill C-91 and Bill C-92, and now the proposed Bill C-15.
The Assembly of First Nations, AFN, is a lobby group and should not be misrepresenting itself as speaking on behalf of all First Nations. The AFN does not represent or speak for our Treaty 8 First Nations. The Treaty 8 First Nations in Alberta represents itself at any and all times.
Jim Badger, Chief, Sucker Creek First Nation, Treaty 8 First Nations of Alberta: Thank you, Grand Chief Noskey.
[Chief Badger spoke in his native language.]
Good afternoon, senators and everyone. I am the Grand Chief of the ambassador and international relations for the sovereign nations of Treaty 8.
During their presentations to you earlier this week, Ministers Bennett and Lametti both said good words about working with Indigenous people. In fact, Minister Bennett referenced the saying “nothing about us, nothing without us.” It is difficult not to feel angry with the continued exclusion of our communities. These words are meaningless and empty. What this approach tells us is that Canada is lazy and insincere. Today, the Crown continues to implement the treaty unilaterally by controlling and developing our Treaty 8 resources. We are subject to economic and social hardships resulting from the effects of generations of colonization and dispossession, while the Crown, ministry and non-Indigenous Canadians benefit from the development of Treaty 8 resources. It justifies their continuing exploitation of Indigenous lands.
Bill C-15 only promises another century of failure to live up to the promises and responsibilities of our treaty and the treaty relationship. We have been asking ourselves this question: Why is Canada only — only — about implementing the United Nations Declaration on the Rights of Indigenous People? There is something wrong here. The conversation we must be having is about implementing the true spirit and intent of our treaty relationship.
Implementation of the true spirit and intent of the treaty would result in a realization of our human rights, our right to live as Cree, to live as Dene, to live as Chipewyan in our territories, but it seems to me and others that with reconciliation most Canadians prefer the narrative of national reconciliation versus the narrative of the uncomfortable reality of betrayal and unfulfilled promises.
Canada wants to delay this, perhaps hoping that the next 100 years will bring an end to those ways. Canada is talking about human rights. It’s absurd when First Nations continue to live under boil-water advisories. My community has a court case against Canada under the Canada Water Act. As of today, there is no national action plan following the national inquiry and, if confirmed, their promise to end boil-water advisories will go unfulfilled.
The Chair: I’m sorry, Chief Badger, your time has expired. I would like now to open the floor for questions.
Senator LaBoucane-Benson: This question is for Ms. Tenute. You talked about and called on the government to use a decolonized methodology for consultation. Could you elaborate and explain what you mean by a decolonized methodology?
Ms. Tenute: Absolutely, meegwetch. When we spoke with the youth, a lot of us asked to go back to these conversations around place base; where do we come from and who we are as a people. I found this approach to decolonization presupposes these other conversations around honouring relationships and honouring the ways in which we as Indigenous people view the world. The extension from that conversation came from how the youth felt during the engagement sessions that they were invited to, and many of them felt it was rushed and they felt they were not able to come to the table in a right way. Our organization took the liberty of preparing the youth to get them ready so they could come to the table, and be informed.
A lot of them felt it was somewhat rushed. We’re very grateful to be there and still am. It just felt as though there must be more attention paid to where we come from as individuals, and ensuring that the implementation is adopted to reflect the diverse needs of Indigenous communities and where this comes from. I hope that is clear.
Senator LaBoucane-Benson: That’s great. Thank you very much.
Senator Patterson: Often when I or my colleagues ask a question about consent of some versus consent of all, it’s taken to mean within the context of industry, but that is not what we mean. We’re talking about FPIC within the context of legislative changes and a broad range of social and cultural policy issues as outlined in Article 19.
Grand Chief Noskey, thank you for your compelling presentation. You have been critical of the government’s consultative process for Bill C-15 and in particular about the leading role that the AFN assumed in the consultative process for that bill. In an APTN interview on April 20, you stated:
AFN does not speak on behalf of Treaty 8 and I believe that they are not in tune or in touch with a lot of our grassroots people in understanding our sovereign relationships that we have.
That was echoed by Marlene Poitras, the AFN Regional Chief of Alberta.
In the engagement summary provided to us by the Department of Justice Canada, it lists Treaty 8 for the Alberta region. Did you feel those engagement sessions were fulsome and well resourced, and did you express your concerns about the AFN overstepping by negotiating on your behalf during those sessions? Thank you.
Mr. Noskey: Thank you, Senator Patterson. I’ll put this as a question to Carolyn Bennett, Minister of Crown-Indigenous Relations. From that perspective, as the government talked to us about Bill C-15 and about the articles that apply to us as First Nations people, I stopped Minister Bennett in the process and I questioned her. “Minister Bennett, Treaty 8 is a sovereign nation. We’re a sovereign people that entered into the treaty. Did you ever call the Queen of England and tell her that these are your rights under this article as a government?”
That is the point that we’re making as sovereign nations that entered into the treaty. We are the ones that entered into it; our people as a territory, as a whole of Treaty 8.
So why would we allow somebody else to speak on our behalf about reclamation or reconciliation, implementation of what the treaty was about? The colonized process derives its regulatory laws and legislation from a Doctrine of Discovery process that we are not human as people.
Everyone seems to forget the Royal Proclamation of 1763 and “That those Indians owned those lands and make a treaty with them.” Our forefathers had the oral history of what the treaty was about. The more and more we engage in that process, the more we realize the sovereignty that we have as a people.
So, senator, because of that sovereignty — in the early courts our oral history was excluded as vital testimony. So that is why we are saying no one speaks on our behalf. No other organization.
The generations to come will realize who they are as Treaty 8 nations and the sovereignty that they have.
Senator Francis: This question is for Ms. Tenute and Mr. Norris.
Many witnesses have pointed to feelings of skepticism and distrust toward the Government of Canada, which is something that I as a Mi’kmaq person can appreciate. Should this bill go on to become law by the summer, what concrete recommendations would you make to the Government of Canada to ensure that the design and implementation contribute to reversing, at least in part, the colonial relationship and structures that impacted generations of Indigenous peoples?
I would also like to know, in your opinion, how would the failure of passing this bill impact national reconciliation efforts and exacerbate the dynamics of skepticism and distrust that are prevalent among some Indigenous youth?
Ms. Tenute: I will allow my colleague to go first.
Mr. Norris: Thank you for the question.
In terms of addressing the skepticism, which I think is due and understandable, given the long colonial history that Indigenous peoples have had with the Canadian state, there are key principles and standards that need to be recognized within the action plan following the passing of this bill, a lot of which are baked into the principles and standards in the particular articles of the UN declaration itself, particularly Articles 3 and 4 respecting the right to self-determination, Article 18 respecting the rights to decision-making, and Article 22, which critically recognizes the importance and specific circumstances of Indigenous elders, youth, women and people with disabilities, as well as Article 23 in developing priorities.
In light of these articles, I would caution about being too prescriptive in the development of an action plan and to ensure any action plan or follow-up work from this bill is done in complete collaboration, cooperation and partnership with Indigenous peoples.
Saying that, a lot of work needs to be done to allow Indigenous peoples to develop their own ways of engaging with the government to develop their own systems of governance. Some nations and some communities may not be at that level of readiness that others may be. So principles of accountability, transparency and appropriate resourcing will be critical, as well as appropriate timelines, all of which should be determined in partnership with Indigenous peoples at the table.
Ms. Tenute: I would like to echo that. To go back to what we were saying earlier, one of the fundamental pieces is reverting to that seven-generational thinking, in that it is the youth that will be the ones leading these conversations, and having them at the forefront and at the table now is vital.
With respect to Call to Action 57.
The Chair: I’m sorry, Ms. Tenute, your time has expired.
Senator Stewart Olsen: My question is for Chief Badger. First of all, I’d like to thank the youth organizations for presenting a clear, cogent explanation of their position on this bill. It has been refreshing to hear.
Grand Chief Noskey and Chief Badger, you both expressed my reservations about the bill, that the consultation was not with the right people, or not inclusive enough may be a better way of saying it.
Chief Badger, you spoke about the needs of people in our community and the importance of investment in facilitating training and opportunity. You’ve spoken about the need to have people working in order to meet basic needs and ensure people have opportunity.
Grand Chief Noskey has said the question we have is, is this once again is another suppressive legislation that will be interpreted by one side to be able to again restrict and suppress.
Do you think extensive legislation should arise in an attempt to clarify how these terms or points of contention should be interpreted? Would that serve the interests of your nation or any nations? Or do you feel it will be an unnecessary delay?
Mr. Badger: Thank you for your question. We’ve never had proper consultation on Bill C-15. The consultation was with the AFN, not with us. Therefore, that’s one of the reasons we believe that Bill C-15 is for the sole benefit of Canada, while undertaking its own interpretation of the declaration and how it applies in Canada.
We already have it on record, senator, that it was conditional. Minimum standards of this declaration — Canada voted no on minimum standards. And yet we’re expected to fall out and say, “Oh, we love you.” Yeah, right.
This is why I get so upset when you’re out talking to the wrong people. AFN has no treaty rights. Canada is only a state. We have been saying this for years and years. I’ve been a chief for many years, since 1983. I have retired a couple of times, but they’ve always brought me back. We’re still in the same spot here as we were back in 1982 when you were talking about the Constitution.
The older Trudeau, I remember sitting in the same room when he was talking.
Senator Stewart Olsen: I’ll just interrupt you, Chief Badger, because time is really short. Thank you very much. It was a pleasure to hear both of your presentations. I think it’s important to hear all sides. Thank you, sirs.
Senator MacDonald: My question is for Chief Noskey, but I must mention this. Chief Badger reminded me; in 1983, I was working for John Buchanan, and I was at that meeting in Ottawa. You brought back an old memory to me.
Chief Noskey, I have this question for you. Whenever any rights holders raise objections to this bill, this committee is told that amendments at this stage are not welcome, and we are assured that everything will be solved through the action plan. In that regard, I can tell you, as other witnesses have been told, that when the official opposition was briefed on this bill, we were told that in the view of officials, Bill C-15 binds the Crown to nothing more than developing an action plan, and that while the ministers have spoken loosely about working towards consensus with whomever is around the table, the consent of Indigenous people is not required to finalize that action plan.
Do you feel that the government will be able to properly consult with all rights holders on these complex issues within the two-year time frame? What do you think will be the outcome when raised expectations related to this bill and UNDRIP are not met? Thank you.
Mr. Noskey: Thank you, senator. I’ll respond in this way again. Adequate consultation would have happened if Canada engaged with the treaty partners of the sovereign and Imperial Crown. That is Treaties 1 to 11. That probably encompasses 65% of Canada. Under the sovereignty aspect of it, again, that is the reason why we’re questioning the lack of consultation and lack of trust with Bill C-15. It is the fact that we refer to Bill C-92.
Canada has a state in First Nations country as promised under treaty. A right to education brought in the system not only misrepresented God and Christianity but also basically plagiarized, basically fragmented, our communities, our families, our structure, our heritage.
On top of that, due to lack of funding for the Natural Resources Transfer Acts, again, that instrument basically is illegal. We have an international treaty that, again, is basically for the benefit of others. Now, to date, we are talking about Bill C-92; legislation on child welfare. Basically, the provinces have to approve of that process. So, senators, why as a sovereign nation, able to enter into treaty, why are we decimated in standard to a point where we are below municipalities? I just have that comment. Thank you.
The Chair: Thank you, Grand Chief.
Senator Coyle: Thank you very much to all of our witnesses. I agree with Senator Stewart Olsen. It’s very important for us to hear all of your voices and all of your perspectives as we study this important bill.
My question is for Ms. Tenute and Mr. Norris. We appreciate hearing what your support is for Bill C-15. Thank you for reminding us of the importance of engaging youth on their terms in the implementation of UNDRIP and Bill C-15.
What impact do you think the passage of Bill C-15 will have, specifically on Indigenous youth across Canada? What would the impact be on those youth if this bill were not to pass? Thank you.
Ms. Tenute: Meegwetch. Throughout all of our engagements, the youth have shown us that, in Canada, they have clear and tangible and salient ideas about what respect and reconciliation look like through this bill, especially in relation to the rollout in communities. It needs to be community-led and community-tailored, and it can’t be rushed. I understand the action plan for this is moving along, or it will be. With that being said, it really is going to take a little bit more [Technical difficulties]
The Chair: Ms. Tenute, you were in the process of answering a question. Please, continue with your answer.
Ms. Tenute: As it pertains to the impact if Bill C-15 moves forward, it needs to be flexible enough to respond to distinct community needs. In most of our engagement sessions that we had, there was a clear hope that Indigenous youth have for this being a pathway forward toward reconciliation in this country.
In the fear of it not moving forward, there is the obvious fear of having to start over again. For a lot of folks, we did understand there is an ongoing history in this country of Indigenous people being placed in this position of, “We’re damned if we do and we’re damned if we don’t.” For most of the engagement that we had, a lot of folks felt an implementation such as this would provide a little more hope.
Mr. Norris: Something that has come across clearly from our youth, in our experience anyway, is that the status quo is broken. Indigenous youth are at the forefront of the homelessness crisis, opioid crisis, suicide rates, poverty, et cetera. If this passes, we move forward into the UN Declaration on the Rights of Indigenous people. It will empower Indigenous communities to develop culturally relevant training and education programs, alternatives to policing, familial care policies, which better meet youth where they are at.
They can do a better job than general public programs providing culturally relevant programming and services.
The Chair: Thank you, Mr. Norris.
Senator Forest-Niesing: Thank you to all of the witnesses. It is certainly very interesting to hear the youth perspective that is just imbibed and soaked in hope and optimism. It does reflect a lot of the testimony that we have received to date with respect to the importance and the significance of this bill as a first step towards reconciliation and how many calls there have been for its adoption.
I will put my question to Chief Noskey and Chief Badger. I do understand your position, and I appreciate that you have shared it with us.
If you do not recognize the AFN as an authority that can negotiate on your behalf and bind you, and you do claim your entitlement, of course, to participate nation to nation and be at the table to contribute to decisions that will affect you, I wonder if you don’t agree with me that this bill, as an important first step, does create the opportunity that you might seize to ensure that you, as part of the diverse Indigenous population, have a seat at the table and can, either beside the AFN or in lieu of the AFN, ensure that you are consulted and that you collaborate in providing the required consent when there are matters affecting you and your territory?
Mr. Noskey: Thank you, senator. I will try and answer.
In saying that, I believe that the government, the state of Canada, should be consulting with the representatives, with the Grand Chiefs of Treaties 1 to 11. I believe that is the right process into reconciliation.
I will say in relation to our youth — thank you to the youth who are here presenting — and the generations to come, under the articles of Treaty 8, the first two promises under sharing this land with the foreigners was education. So to us, education as a treaty right is whenever our youth want to engage or endeavour in a career at some point, that is at-cost for their training, for their education. That is our understanding of what our forefathers entered into under treaty. To date, under the state, it has been just a program that undermines and creates all these dilemmas in our First Nations youth. Thank you.
The Chair: Thank you, Grand Chief.
Senator Pate: Following up on Senator Forest-Niesing’s question and those of others, given the concerns you have raised about the lack of consultation or the consultation with the AFN, what would you recommend as a process going forward, Grand Chief? I would also be interested in perspective in terms of youth; how engaging Indigenous urban youth could be best achieved as we move forward. Thank you.
Mr. Noskey: Thank you, senator. We have been engaging with the federal ministers, Indigenous ministers, saying that consultation, and basically a process or relationship in the reconciliation, has to be with the treaty partners of the imperial Crown, which in this case is Treaty 8. We can only speak on behalf of Treaty 8.
We have youth councils and youth committees as Treaty 8 organizations, but in saying that, it is because of the legislation, the regulatory process and the program policies that the government treated sovereign partners under treaty as below municipalities is the reason why our youth and our elders are where they are today. That process of the residential schools, the lack of capacity of funding in their education, and also the homelessness at the nation level, basically under the treaty, our elders agreed to canvass for tents as a process, which is housing interpretation today in the 21st century. So because of lack of housing, because of managers of poverty, that is basically why Canada chooses to engage organizations outside of the sovereign people that entered into treaty. So there is a way of reconciliation and that is the process with the treaty partners, which are the sovereign nations, in this case of Treaty 8. Thank you.
Senator Pate: Mr. Norris and Ms. Tenute, do you want to speak about how to engage young people?
Mr. Norris: There is certainly a gap in providing services and funding of resources to urban Indigenous groups and organizations, especially urban Indigenous organizations that serve Indigenous people disconnected from their home territories and their home communities, largely as a result of colonialism. With that comes a level of fear that they are going to be left out of this process.
I would go back to my original statement that any implementation effort needs to allow Indigenous peoples to organize amongst themselves on how they want to address these gaps.
The Chair: Thank you, Mr. Norris.
Senator Hartling: Thank you, Chief Noskey and Chief Badger, for your historical memory in bringing us back to some earlier times and the way things happened, and also for your great information. As has been said before, it’s important for us to get a lot of different information and perspectives.
I also want to thank you, Ms. Tenute and Mr. Norris, for your information on youth. As has been said before, it’s very important to have youth voices.
I want to expand a bit on that. You have mentioned some of the issues that youth have experienced. Could you dig into that a little deeper? I’m also looking to see if it’s consistent across the country. I think what you have said is that it has provided hope for youth to be engaged, but have we engaged youth across the country? Are the issues consistent across Canada for youth? Thank you.
Ms. Tenute: There is no monolithic approach to youth. The work that we have done at CRE has been more of a smaller sample in relation to some of the bigger engagements that have gone on.
In terms of the issues or what I refer to as the realities that Indigenous youth face, I want to try and defer using any sort of narrative that paints it as that we speak for all Indigenous youth, which we don’t. Again, it was just a small sample of which we engaged with.
One of the biggest issues we did see coming forward was around trust and the need for accountability for individuals as you implement the UN declaration, to ensure that they are being held accountable, to ensure it aligns with the principles set out in the declaration.
To touch on earlier points, it’s around the need for accessibility and education around these subjects. More often than not, Indigenous youth tend to be brought to these tables and not given the proper consultation to be able to engage and make insightful decisions, and so it’s really a matter of creating an accessibility space for folks.
Mr. Norris: I support what was previously said.
I think there needs to be some engagement within the action plan, within implementation, that supports youth voices being at the table. In previous consultation and engagement processes, often Indigenous communities have had a limited ability to bring delegates to these tables. Often bringing a youth is seen as a difficult choice. So providing the space and resources to bring youth into these processes could be of benefit.
Senator Hartling: Thank you very much.
Senator Anderson: My question is for Grand Chief Arthur Noskey. In a news article dated April 20, 2021, you stated that the legislation will hurt more than harm. Can you please explain?
Furthermore, historically, Canadian legislation was used to harm, hinder and colonize, and not help Indigenous people, yet the same process is being used today in the name of reconciliation. Is it fair of the Canadian government to expect Indigenous people to trust them, given their history with Indigenous people? In your opinion, is there another piece of legislation or a process you would like to see occur to rebuild trust with Indigenous peoples? Should rights or treaty holders be able to opt out of this legislation?
Mr. Noskey: I believe there is. As leaders, we have always recognized our sovereign relationship with the imperial Crown. We are not in a process to break that relationship. We are in a place of realizing reconciliation, basically to see it implemented as understood by our elders.
I believe that that is where engagement needs to happen. We have the technology today such that you don’t have to travel through riverways on boats or on horseback. We have the technology, through Zoom, to engage with government representatives and to realize a reconciliation process. However, it seems they are not willing to engage.
I referred earlier to Bill C-92, the Aboriginal child welfare legislation. Now their legislation has to comply with the provincial legislation.
To date, there is a director under the Child Welfare Act of the province that still adopts kids, that still takes kids out of care, out of the nurturing of their parental homes. In saying that, this youth issue will continue until that generation is in their late teens. There is no remedy to resolve it. That’s why we want to be at the table, as the sovereign treaty people, to engage in education, in health, in our youth, in our regulations and laws, basically under reconciliation, so that this atrocity does not continue. There are only Band-Aid solutions to date and we don’t want it anymore. That’s what we’re saying. I don’t know if I answered your question.
Senator Cotter: Thank you to the presenters. Each of these sessions is a learning experience for me and I very much appreciate it.
My question primarily flows from Senator Stewart Olsen’s question but slightly differently.
I think Treaty 8 First Nations’ position — as well as some of the other treaty First Nations in the confederacy — has been a concern about the colonial nature of decision making in relation to the rights and entitlements of First Nations people. I think it’s fair to say that however this proceeds, at some point we are going to see issues litigated in the courts to try to get an articulated answer to that. I do have the impression that that approach and ultimately a decision, say, by the Supreme Court of Canada is part of that colonial framework.
I’m interested in knowing whether I’m overstating your concerns. If I’m not overstating them, do you suggest other mechanisms by which these issues of disagreement would be ultimately resolved? I think this is mainly for Grand Chief Noskey or Grand Chief Badger. Thanks.
Mr. Noskey: I will say my part and then give Grand Chief Badger the opportunity.
In saying this, I would have a question. I’ll answer your question with a question. Do you engage against the imperial Crown in litigation as Canada? Do the provinces engage in litigation against the imperial Crown as Canada, or as states of Canada and Alberta? I do not believe so. So why should we engage in a process, when we had a treaty, an understanding? Even though ours was oral, I believe that it is prime time for truth and reconciliation to come forth in engaging with the numbered treaties.
Mr. Badger: I have pondered this question many times. Maybe we need a world court to give us the proper answer to this treaty question.
Also, for Senator MacDonald, on the Constitution meetings, I remember that at that time, AFN would not even give us a seat to present our sovereign position. That was, what, 1982? And we’re still in the same spot again, over and over.
The Chair: Thank you, Grand Chief.
Second round, Senator LaBoucane-Benson.
Senator LaBoucane-Benson: My question is for Grand Chief Noskey. It’s nice to see you again.
Do you think it’s possible to preserve the treaty relationship and work on treaty implementation in good faith at the same time as harmonizing the laws of Canada with the UNDRIP articles? Can those two processes be undertaken simultaneously?
Mr. Noskey: I do not believe so. I believe there needs to be an adequate understanding of the treaties. Treaty 8, like I said, it’s 121 years. Basically, the colonized people understand that treaty under a colonial mindset. Governments have ruled since that time, under that colonial mindset, that they own the land. They assert their ownership of the land.
However, under the treaty and the oral history of our people, it was shared land with the newcomers. These were the benefits under two sovereign nations making a treaty. These are the agreements under that treaty — which included education, health care, the cows and plows, the canvas for tents — basically as benefiting.
I’ll say this as well. Under the treaty there is tax exemption. Treaty 8 is tax exemption. People think the First Nations don’t pay taxes. Our understanding is that the imperial Crown does not pay taxes to anybody. That is the sovereign mindset, the understanding of the sovereignty. All our people who share our lands are the ones who contribute to this treaty, but Canada has restricted it to a program based on per capita and even undermined the numbers.
We’re saying that reconciliation has to happen with this understanding in place, where these laws and legislation is considered from that perspective, not from people at large who are colonized.
Senator LaBoucane-Benson: Thank you. I guess my question was around all of the nations with no treaty. We are very lucky here in Alberta. We have Treaty 6, 7 and 8, and we have that agreement that is so important. I agree with you. We’re all treaty people. I wonder about the nations with no treaties, where they start.
Mr. Noskey: I believe that, again, it’s a process that needs engagement with First Nations. We are a treaty people.
Under Canada’s status system, we eventually lose our status or the treaties keep growing. Where is the justice in that? So, again, engagement with the nations.
The Chair: Thank you, Grand Chief. The time for this panel is now complete. I wish to thank our witnesses for meeting with us today; thank you, Ms. Tenute, Mr. Norris, Grand Chief Noskey, Grand Chief Badger and Ms. Auger.
For our next panel of witnesses, we welcome from the Gwich’in Tribal Council, Ken Kyikavichik, Grand Chief; from the Mohawk Council of Kahnawà:ke, Ross Montour, Chief, and Francis Walsh, Legal Counsel; from Pasqua First Nation, Matthew Peigan, Chief; and from Pimicikamak Okimowin, David Monias, Chief.
Welcome, everyone. Opening remarks of approximately six minutes will be followed by questions from senators for approximately three minutes per senator. 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 senators have a question, they are asked to use the raise hand feature to signal the clerk. Please note that the committee members will be given priority. 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 10 seconds are left for witnesses’ opening remarks, and for questions and answers. I will do a 10-second visual countdown using both hands, and when the time reaches zero, I will advise that the time has been completed.
I wish to invite Grand Chief Kyikavichik to begin his opening remarks.
Ken Kyikavichik, Grand Chief, Gwich’in Tribal Council: Good afternoon, Mr. Chair and senators. I was elected only last September, and I am here speaking on behalf of the over 3,500 participants to our Gwich’in Comprehensive Land Claim Agreement that we signed with Canada back in 1992.
It is my honour to be here speaking with you with respect to this milestone legislation in Canada’s history. For us as Gwich’in, some of the core principles of the United Nations Declaration on the Rights of Indigenous Peoples, the UN declaration for short, include the following: one, recognition and affirmation; two, the principles of free, prior and informed consent, or FPIC as it is more commonly known; three, the right to conservation and protection of the environment, and; four, improvement of economic and social conditions.
First, on recognition and affirmation, I would be remiss if I did not acknowledge Treaty 11 in the Northwest Territories. On July 2, 1921, in Fort McPherson, Treaty 11 was signed by my great-grandfather, Chief Johnny Kyikavichik, who was a headman at the time of signing, along with other Tetlit Gwich’in leadership, such as Chief Julius Salu and Headmen Abraham Francis and Andrew Kunnizzi. The Gwich’in were also represented in the signing of Treaty 11 by the Gwichya Gwich’in leadership of Chief Paul Niditchie and Fabien Lalou, two days earlier, on July 26, 1921.
We acknowledge that we approach the centennial of the signing of Treaty 11, which is an integral document between our respective nations and forms the basis of our modern day treaty. Articles 4 and 37, specifically, are the basis of our relationship.
We are pleased that we continue our discussions with Canada and the Government of the Northwest Territories on our efforts to develop our Gwich’in government. These talks have been ongoing for over 24 years, and it is our hope that in the years to come, we will be able to execute upon the commitments made in Articles 3 and 4 for our Gwich’in people of the Northwest Territories.
Second, Articles 19, 26 and 32 speak to the requirement for any developments within our Gwich’in settlement region in the Northwest Territories and Yukon to be consulted and approved by our Gwich’in people and communities. To be clear, our expectation is that FPIC does not constitute a veto but rather shared decision making over any developments in our area.
Third, for us as Gwich’in, the protection of lands, water, air and resources, such as the Porcupine caribou herd, are non-negotiable. Our efforts over the past 30 years to protect the birthing grounds of the Porcupine caribou herd in Alaska have been a galvanizing experience for us.
We are not anti-development people, however, there are some proposed developments that bear much too high an environmental risk. Oil and gas development on the coastal plain of the Arctic National Wildlife Refuge in Alaska is one of these high-risk developments. We recognize that this is also an international issue for Canada, and we have been pleased to see the resounding support that we have received from the federal government and financial institutions in our efforts to protect this sacred area.
Third, sadly, like many other First Nations and Inuit communities in Northern and remote regions, our Gwich’in community suffers from critical infrastructure issues around housing, clean drinking water and access to acceptable building materials such as aggregate and lumber. Housing, for example, is the number one critical infrastructure issue in our communities, followed closely by the lack of acceptable engineering and technical support to construct the homes and communities we require.
In closing, it is unfortunate that it has taken Canada almost 14 years to adopt what was developed back in 2007 and is now universally recognized as the international standard for sovereign governments to follow. Perhaps this is a sign of the need to implement Articles 1 and 2, which speak to the enjoyment of all human rights and the freedom from discrimination for Indigenous peoples.
I am ashamed to say that this country of Canada has a long way to go in removing discrimination of Indigenous peoples from its institutions, particularly in the areas of justice, child and family services, social assistance, corrections and economic development.
Earlier this month, we filed a Statement of Claim against the Department of Justice Canada for their handling of the case of the late Edward “Eddie” Snowshoe, a 24-year-old Gwich’in man who died in solitary confinement in the Edmonton Institution in Alberta in August 2010. For over 160 days, young Eddie was in self-isolation, where he ultimately hanged himself, despite repeated red flags that should have indicated to corrections staff that his suicide was imminent and his mental health was at risk. For this, we are seeking an apology and compensation from Canada.
That is just one of the many examples of how the multitude of pandemics, the Canadian residential school system and the removal of our traditional ways of life — by relocating a proud independent people into municipal communities — have resulted in the loss of too many of our Gwich’in people while eroding our culture, language, economy and values.
Senators, the UN declaration is simply a document. Bill C-15’s approval would be a great step forward, and I thank the government and ministers for the legislation. However, success will be measured in its implementation. The real test of sustainability will be the shift in approach in policy that is required by the Canadian government. If we continue to see a bureaucracy that does not understand or comprehend the UN declaration, then we will be no further ahead.
Thank you for your time and the opportunity to present today.
The Chair: Thank you, Grand Chief. Chief Montour.
Ross Montour, Chief, Mohawk Council of Kahnawàke: Thank you for hearing our words. My name is Ross Montour, and I am elected Ratsénhaienhs of the Mohawk Council of Kahnawà:ke.
The MCK does not support Bill C-15 in its current form. Essential amendments are still required to make the bill acceptable. The MCK’s position aligns with the position stated in the AFNQL’s motion, unanimously adopted February 26, 2021. Bill C-15 does not implement UNDRIP.
During an engagement session on October 29, Canada’s representatives acknowledged that the legislative proposal does not implement UNDRIP in Canadian law. This is concerning because there is an incompatibility between the rights prescribed by UNDRIP and section 35 of the Constitution Act, 1982.
While we have heard some witnesses before this committee express great confidence in recent Supreme Court decisions, our views are far more nuanced and critical. Wins before the court often contain serious limitations or caveats. Despite some form of recognition of Aboriginal rights and title, there has been relatively little change on the ground. Very few modern treaties and agreements have been reached, treaties continue to be violated, socio-economic disparities persist, development of Indigenous lands continues almost unabated and our people still disproportionately suffer from violence and discrimination.
MCK attributes part of the responsibility for this to the problematic foundations established by the courts in their interpretation of section 35. As explained by Indigenous legal scholars, the common law interpretation of section 35 is heavily based on: the Doctrine of Discovery, including the imposition of Crown sovereignty over Indigenous peoples, including self-government rights; disregarding Indigenous laws and legal traditions; establishing that the Crown has ultimate title to land; the burden of proof imposed on Indigenous peoples to establish their rights, and; the racist, frozen-in-time Van der Peet test.
For MCK, the promise of UNDRIP includes ensuring that the common law interpretation of section 35 evolves in accordance with the minimum international human rights standards of UNDRIP, including a clear, binding repudiation of the Doctrine of Discovery.
However, we are concerned that the combined effect of the lack of clear wording to ensure the application of UNDRIP to the laws of Canada, and the wording of section 2(2) of Bill C-15, could be interpreted as upholding and not derogating from the current problematic interpretations of section 35.
Therefore, we insist on the following three amendments to Bill C-15: Section 2(2) must be amended. Wording should be taken from Article 45 of UNDRIP rather than using the standard non-derogation wording used for domestic federal legislation. A provision must be added to the body of the law that states that the laws of Canada, including section 35, must be interpreted in accordance with the rights and principles set out in the declaration. Lastly, a provision must be added to the body of the law that affirms the repudiation of the application of the Doctrine of Discovery in Canadian law. An effort was made to address our concerns through the enhancement of the bill’s preamble. However, it is problematic that the operative provisions of the legislation do not reflect the scope of the lofty preamble.
The MCK has heard supporters of the bill dispute this concern by arguing that preambles serve an important interpretive function. However, we refute this and believe that comments made by Professor Roach apply to Bill C-15 when he speaks of expansive preambles that are:
. . . a means of overselling the legislation that will quickly generate disappointment and cynicism or as an attempt to achieve a consensus at such a high level of abstraction that it will quickly break down when anyone tries to apply the legislation.
We want to take a moment to address concerns about FPIC. FPIC is nothing new, and opposing it is discriminatory. In accordance with the Two Row Treaty relationship, Mohawk jurisdiction continues to apply independently and in parallel to the Crown. Two Row consists of two rows of purple beads separated by three rows of white. The white symbolizes the river of life or the land that we all now share. The two purple rows symbolize the Haudenosaunee and the Europeans travelling side by side, never interfering with each other’s journey. Haudenosaunee treaties with the Crown, including the Treaty of Niagara and the corresponding royal proclamation, were based on these principles and Haudenosaunee legal tradition.
Our treaties are a historic illustration of FPIC. While the Crown fails to live up to these treaty obligations, the notion of FPIC is nothing new, nor radical. Nor should we think that the dreaded vetoes are not part of the modern legal landscape already. For example, Quebec legislation provides municipalities with veto power over mining development within their territories. It is discriminatory to advance that Indigenous governments are incapable of exercising authority that legislators afford to municipalities.
We would also address the concerns that have been expressed by many participants about not wanting to miss this opportunity to pass UNDRIP legislation. It is Canada that must bear the burden of urgency to act, due to its inaction on UNDRIP. Indigenous peoples should not be the ones to compromise or accept weak implementing legislation because of urgency. The Senate should recommend the enhancements suggested by the Mohawk Council, the AFNQL and other witnesses before this committee, and Canada should bear the burden of ensuring the timely adoption of an effective amended bill. [Indigenous language spoken]. Thank you very much.
The Chair: Thank you very much, chief. I would like to welcome Chief Peigan for his opening remarks.
Matthew Peigan, Chief, Pasqua First Nation: Thank you, Mr. Chair, and good afternoon to each and every one of you. It is a pleasure to be allowed to present to the Standing Senate Committee on Aboriginal Peoples pertaining to Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples.
I am presenting to the honourable committee members from my nation, which is the Pasqua First Nation in Treaty 4 territory, entered into by Chief Paskwa and representatives of the Crown on September 15, 1874.
Before I begin, let me be clear that the United Nations Declaration on the Rights of Indigenous Peoples does not replace sacred treaties made between Indigenous nations and representatives of the Crown. The Crown’s sacred obligations — treaty obligations entered into before the Creator — can never be taken away or extinguished.
The United Nations Declaration on the Rights of Indigenous Peoples Article 37 reaffirms this. It states that “Indigenous peoples have the right to the recognition, observance and enforcement of treaties . . .” and that nothing in this declaration may be interpreted as diminishing or eliminating our rights.
In September 2007, the United Nations passed the United Nations Declaration on the Rights of Indigenous Peoples that we know as UNDRIP. Since this time, there have been many Indigenous nations, individuals, and groups that have called on all federal political parties and the Senate to adopt and give recognition to this critically important document crafted by the United Nations.
Pasqua’s elders have always instilled in us that our treaties are international and they have to be addressed at the United Nations. The UNDRIP is a statement of those nation states, reaffirming the rights that we’ve always had and that we possess into time immemorial.
The Truth and Reconciliation Commission of Canada and the National Inquiry into Missing and Murdered Indigenous Women and Girls both called for federal action to implement the declaration. The Truth and Reconciliation Commission of Canada report stated:
The Commission therefore believes that the United Nations Declaration on the Rights of Indigenous Peoples is the appropriate framework for reconciliation in twenty-first-century Canada.
Page 190 of the summary of the Final Report of the Truth and Reconciliation Commission of Canada stated this. Also in the National Inquiry into Missing and Murdered Indigenous Women and Girls report, it mentions Article 3, Article 4; the right to self-determination by our peoples.
Since 2007, we have had nations asking the government, requesting, enforcing the government to recognize UNDRIP. This government has recognized UNDRIP, is now incorporating it, working on putting it into Canadian law. And again, let me be clear. It is not replacing treaties.
I also want to commend Mr. Romeo Saganash for bringing attention to UNDRIP with the introduction of his private member’s bill, Bill C-262. Unfortunately, Mr. Chair and honourable committee, it was at this stage that his bill failed.
It is now almost 14 years since we first heard of UNDRIP, in 2007. At that time, UNDRIP was recognized and endorsed at the United Nations. It is finally time that all federal political parties and the Senate accept this very crucial piece of legislation; legislation that will have Canadian law align with the articles set forth in UNDRIP — not determining, not defining treaty. It is legislation that will build bridges, partnerships and reconciliation with Indigenous peoples.
Again, the bill will require the federal government to conduct a review of federal laws and policy with First Nations to ensure they are in line with the minimum human rights standards of the declaration. Second, Bill C-15 requires Canada to work with First Nations, Indigenous nations, to develop an action plan for implementation.
This means that Canada will be required, by its own law, to support First Nations’ priorities, to support our inherent and treaty rights, and to end policy approaches of extinguishment, denial or delay. This is essential to improving the well-being of our citizens and nations.
Canada has committed, through the first and second readings, to changing very important aspects of the bill: the Doctrine of Discovery, terra nullius and systemic racism. I ask and urge the Senate not to repeat history. I urge the Senate and this committee to pass this bill in its current form. That window of opportunity is closing, and we must act honourably in a way that would allow Indigenous nations to set the path forward to determine their future.
That is what we have to do today, to the honourable committee.
At this time, I would like to thank the honourable Senate for allowing me time to present to you today. Meegwetch.
The Chair: Thank you, Chief Peigan. Now for his opening remarks, Chief Monias.
David Monias, Chief, Pimicikamak Okimowin: [Indigenous language spoken].
To speak to you in my language; thank you. Hello, Tansi, good afternoon. I am David Monias, chief of the sovereign nation of Pimicikamak, also known as the Cross Lake Band of Indians. We have entered into Treaty No. 5, and we also have the modern-day treaty of the Northern Flood Agreement.
It is my responsibility and duty of Pimicikamak, as well, to protect the lands and waters and to protect the Indigenous, treaty and human rights of the citizens of Pimicikamak. It is in this capacity that I am pleased to share our comments with the committee about Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples.
Pimicikamak has supported UNDRIP during its development and its presentation to the United Nations General Assembly on September 12, 2007. Pimicikamak actively worked alongside the First Nations in Canada and internationally to urge Canada to endorse UNDRIP without reservation or qualification, which Canada eventually did on May 10, 2016. Pimicikamak says that the principles of UNDRIP are consistent with the exercise of Pimicikamak sovereignty and authority. Amending Bill C-15 to make UNDRIP enforceable in Canada is an important step toward reconciliation. Amending Bill C-15 to make UNDRIP enforceable in Canada will create another path toward the practical recognition, affirmation and protection of the rights of Pimicikamak.
Pimicikamak is affiliated with the Manitoba Keewatinowi Okimakanak Inc., and I serve on the Executive Council of Chiefs. We actively participated in the development of MKO’s position on Bill C-15. I will now reiterate and expand on elements of the submission to this committee that was presented by the Grand Chief.
A question asked by many citizens of Pimicikamak is whether UNDRIP is enforceable in Canada. The answer is no. A further question asked by many citizens of Pimicikamak is if Bill C-15 will make UNDRIP enforceable in Canada? The answer is no. The citizens of Pimicikamak want to know and ask me if Bill C-15 can be amended to make UNDRIP enforceable in Canada, and the answer is yes.
As did MKO, Pimicikamak is proposing amendments to Bill C-15 to make UNDRIP enforceable in Canada. A question being asked of presenters by this committee is whether Bill C-15, without further amendments, is better than nothing. The answer is no. As I explained in my presentation on the theme of making UNDRIP enforceable in Canada, which was delivered on March 25, 2021, to the participants in the webinar on Bill C-15 organized by the Assembly of Manitoba Chiefs:
The central objective in making the principles of UNDRIP enforceable in Canada is to turn the legal and constitutional paradigm around 180 degrees . . .
. . . by having mining companies and forestry companies and energy companies take Canada to court over actions taken by government to recognize, affirm and protect Indigenous rights. . .
. . . instead of the current and historic paradigm in which First Nations endlessly take Canada to court for failing to take actions to recognize, affirm and protect Indigenous rights. . . .
I ask the committee to carefully reflect on this essential paradigm shift in the Crown-First Nations relationship that will result from acceptance of the Pimicikamak amendments to Bill C-15. This shift is necessary because Canada has consistently failed to make day-to-day administrative decisions that practically enforce the rights recognized and affirmed by section 35 of the Constitution Act, 1982, and which are upheld by courts.
Imagine the principles of UNDRIP being read into all federal laws and regulations. Whether or not the provisions of these laws have yet been amended to take UNDRIP into account, imagine all administrative decisions of government officials being statutorily required to take UNDRIP into account, and to take action to recognize, affirm and protect the rights. We call on the committee to recommend the following amendments be made to Bill C-15 with the objective of making UNDRIP enforceable in Canada.
Number 1: that Bill C-15 be amended to include an enforceable UNDRIP affirmation clause as a consequential amendment to the federal Interpretation Act:
Every Act or regulation or action or decision by any level of government is to be interpreted and administered in accordance with the United Nations Declaration on the rights of Indigenous Peoples and no Act or regulation or action or decision by any level of government is to be interpreted or administered so as to abrogate or derogate from that Declaration.
Number 2: that Bill C-15 must be amended at section 4 (a) of Bill C-15 to provide:
The purpose of this act is to: (a) affirm the declaration as a universal international human rights instrument and expression of binding principles of international treaty law and customary international law with application in Canadian law as both a source of interpretation and source of law.
Number 3: amend section 2 of Bill C-15 by replacing the present non-derogation clause to reflect the language of the proposed consequential amendment to the Interpretation Act:
This act is to be interpreted and administered as protecting the Aboriginal or treaty rights of the Indigenous peoples of Canada that are recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.
Number 4 —
The Chair: Grand Chief, your time has expired. I’d like to open the floor for questions beginning with the sponsor of the bill, Senator LaBoucane-Benson.
Senator LaBoucane-Benson: Thank you to all of the leaders and chiefs here today. My question is for Chief Peigan. Some treaty chiefs are worried that this bill will damage the treaty rights of treaty nations, but you have shared a different perspective with us. How did you come to the conclusion that treaty agreements are separate from Bill C-15 and will be unaffected and upheld?
Mr. Peigan: Thank you for the question, Senator LaBoucane-Benson. When you assess Bill C-15 — what I would look at and the best way I can explain it — is you take a side-by-side approach. In my comments, I mentioned that Canada is reaffirming and in an indirect process, because when you take all the articles of UNDRIP, all the articles that are incorporated into Bill C-15, all the articles of treaties — not just Treaty 4 but all the Numbered Treaties — and all the other treaties within Canada, all those perspectives, and you lay them out, you could draw a line from each article to each treaty. However, we’re not interpreting treaty. It’s just Canada saying we’re reaffirming you have these rights. The treaty is a separate entity.
Treaties were made by nation states and only nation states can enter into treaties — the First Nations, our nations. The Pasqua Nation is part of the Saulteaux Nation. Our chief entered into treaty as a nation. Provinces cannot enter treaties. Towns, villages and hamlets cannot enter into treaties. Only nations can, hence you have the United Nations Declaration on the Rights of Indigenous Peoples that came out with a statement. That statement is not reinterpreting treaty. That statement is aside from treaty. Our treaties will exist and even in the document it says that our treaties will evolve under the living tree doctrine.
Thank you.
The Chair: Thank you Chief Peigan.
Senator Patterson: Thank you for the presentations. Chief Monias, in MKO’s appearance before this committee on May 7, they cited your presentation, which clearly outlined the deficiencies with Bill C-15. Having read your submission to the Indigenous and Northern Affairs Committee in the House, I specifically asked during my critic’s briefing whether or not this bill would bind the Crown to any actions and was told by the officials that no, this bill simply creates an obligation for the government to draft an action plan in cooperation with Indigenous peoples.
Then Minister Lametti told us that the federal and provincial laws would continue to “have the final word” in a number of different instances, as I think you have outlined. Officials have told us that the Constitution continues to “be the floor”. I would like to ask you, do you accept and agree with those statements from the minister and his officials? Do those statements seem consistent with any information or representations made to you by them, regarding this bill? Thank you.
Mr. Monias: I have experienced, in terms of what good intentions of many governments have made to Pimicikamak and our people. I do not take anything at face value anymore in terms of what is being promised or what is being asked of us. It must have real value. It must have meaningfulness. We have been promised many things by governments in the past and we have not seen those come to fruition. Treaties being one of them. In Treaty 5 we had many promises, but the spirit and intent of that treaty has not been fulfilled. We have not seen the full implementation or implementation law of section 35, and it’s being left to the courts to interpret what that is.
For us, without any meaningful implementation or changes and amendments to this bill, it’s not good enough. You must have these things in there, that every act and regulation, any decision made by any level of government must be interpreted and administered to protect the treaty rights of the Indigenous people of Canada. That’s why we say that, as much as the Indigenous are there, we recognize UNDRIP; we want to affirm it because we are a sovereign nation ourselves. If Canada is going to be doing some kind of implementation of UNDRIP to govern their behaviour and the words when they choose how to deal with First Nations, I would say that we must make amendments to these things before I would take anybody’s word for it. I need to see it in law. Thank you.
Senator Patterson: Thanks very much.
Senator MacDonald: I’ll direct my question to Chief Montour. In 2016, former Justice Minister Jody Wilson-Raybould argued that:
Simplistic approaches such as adopting the United Nations declaration as being Canadian law are unworkable and, respectfully, a political distraction to undertaking the hard work actually required to implement it . . .
Justice officials told me in my critic’s briefing on Bill C-15 that it will not bind the Crown and that the only obligation this bill creates is to formulate an action plan. The committee was told that while the goal would be to seek consensus, the Justice Minister defined consultation as being heard, considered and sometimes having an impact, but not all of the time.
The AFN and various academics have very clearly advised not to proceed with amendments. Is this one of those times where people with any opposition or concerns to the bill can’t have any impact at all? Speaking on behalf of rights holders, as you can, I would like to know your advice. Should we listen to the concerns raised and try to enhance this bill through amendments, or should we gloss over concerns for the sake of expediency as many others have asked us to do? Thank you.
Mr. Montour: Thank you for your question, senator. Let me start by saying that I was aware those statements were made when Jody Wilson-Raybould was Minister of Justice, and I would say that was expressed from the perspective of the Canadian Constitution in terms of how it relates to Indigenous peoples in Canada. I will also make note of and speak to the fact that Canada was initially one of the member states in opposition to the passage of the United Nations Declaration on the Rights of Indigenous Peoples. Resulting from those objections and concerns, we arrived at Article 46.
We have listened to and heard all of those comments that have been made about the need to move forward with this bill, without amendments, and so on. We will look at an action plan. You said it yourself; this doesn’t really offer anything but some commitment to some particular process pursued by the Government of Canada along with certain groups to develop something of a working plan. But it really does not implement the United Nations declaration of law. Even the government officials have said as much to us. This is a concern.
We have to insist, particularly because my nation resides in the Province of Quebec, which itself sees itself as a state. It has no recognition of our sovereign, inherent right to self-government, and that is problematic. It’s one of the reasons the AFNQL took the position that it had, in terms of not being able to accept the bill as it is right now without changes to 2(2) and the repudiation of the doctrine.
Senator MacDonald: Thank you, chief.
Senator Francis: This question is for Chief Montour, and if there is time, for Chief Monias as well.
We know that Indigenous people in Canada are not all the same. We have unique perspectives and ambitions. Just like the rest of the population in Canada, Indigenous people use democratic models of decision making to try to reach consensus. However, we do not always agree on policy and other matters, nor should we be expected to.
As a Mi’kmaq person and elected chief for nearly two decades, I find it very concerning that the critics continue to argue that the lack of agreement, or in their words, consent, among the distinct and diverse Indigenous people in Canada justifies the defeat of Bill C-15. I am worried that some of your legitimate concerns are being co-opted to justify this argument, so I want to give you an opportunity to clarify your position.
Do you share the view that unanimous agreement among Indigenous people is needed on this bill, even if the same is not required of Canadians at large? In other words, are you suggesting in any way that any one band or nation, including yours, should be able to veto this bill, even if many other Indigenous peoples, communities, governments and leaders across Canada are in unequivocal support?
Mr. Montour: Thank you for your question, Senator Francis. First of all, it is vital to point out that in the position of the Mohawk Council and the position of AFNQL, we are not opposed to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples within Canadian law, but our position and our view is that it needs to be real.
The process of us stating what our concerns are, and what we say are the necessary amendments in order to have our support, does not necessarily transfer into the non-passage of this bill. We are a part and we have a voice. One of our concerns early on was that when AFN came to us and consulted on a regional basis — and I have been very active at the AFNQL level — is that they came to us with a pretty well drafted-out draft bill. None of the chiefs really received very much consultation. It was the Mohawk Council of Kahnawà:ke that took a critical look at what we considered to be the deficiencies of the bill. As I said in my statement, it’s good to have some of those things stated in the preamble, but much better to have it in the document of law. That’s the repudiation of the Doctrine of Discovery. I spoke to that already; section 2(2).
The relationship, in our view, needs to be a correct relationship. It is not to view the United Nations declaration through the lens of section 35. It needs to be reversed. That’s what our position is, respectfully. We understand it. We don’t all agree on that as Indigenous peoples across Canada.
Senator Forest-Niesing: I really appreciate you coming to testify before us, and I certainly understand that not all are in agreement on the importance of passing this bill. We have heard some passionate testimony in support of passing it by some who maintain that it should be amended but who prefer to see it passed with amendments to follow.
To quote a stand-up comedian that I really love, John Pinette, he used to say, “Salad is not a meal, it is the promise of a meal.” I bring that up because I see UNDRIP as the salad. I see the meal that we’re invited to partake in as the action plan and the future consultations that will occur.
My question is to those of you who would prefer to see the bill not pass but for the amendments you are advocating for. I am concerned about whether you might agree with me possibly, that the action plan is a tool or an evolving mechanism through which your particular concerns can be brought and worked on and resolved if this act is passed.
Mr. Montour: I’ll defer to my colleague for the moment, Francis Walsh.
Francis Walsh, Legal Counsel, Mohawk Council of Kahnawà:keThank you for the question. I would refer you perhaps to our submission before the committee because in the submission, we have a link to a journal article in which they discuss the use of national action plans to implement international human rights norms, and the conclusion of that article was that national action plans working alone tend to be insufficient as a tool to implement international human rights norms and that binding legal requirements — either through a binding treaty, or through domestic legislation — are required to operate in conjunction with national action plans. So that would be our position on that. We would also note that the government can proceed to begin work on a national action plan, even if the legislation is not adopted immediately.
Mr. Montour: If I may, Mr. Chair, I would like to add to that comment. The fact is that you use the analogy, with all due respect, about the salad before the meal. We have had generations of eating salad and it’s time for the meat. Niawenhkó:wa.
Senator Coyle: Thank you sincerely to all of our witnesses. You are really helping us, although this is a very difficult decision when we are hearing contrary testimony. I appreciate the fact that not everybody is on the same page.
My question is for Grand Chief Ken Kyikavichik of the Gwich’in Tribal Council. Thank you for being with us, chief. We understand if this law is passed it will be the start, rather than the end, of this multigenerational process to ensure that our federal laws, policies and practices not only meet, but ideally will surpass the human rights standards for Indigenous people in Canada.
Given this bill may become law before summer, could you comment on what steps will be needed from your perspective to ensure that the process of developing and implementing the action plan in the two-year timeline is robust and clear? I’d like to hear your opinion on that.
Mr. Kyikavichik: Máhsi’ for the question, madam senator. Bottom line, what we’re asking for is input into some practical solutions that our communities require at this time. What we find as Gwich’in people and other Indigenous nations throughout the North is that when it comes to legislation such as the UN declaration, there is plenty of debate. As some of our elders will say, there is too much talk. We need to get on with the actions at hand and to start getting things happening.
We stand by, ready to assist the federal government. As you may or may not know, the Government of the Northwest Territories here is contemplating a similar adoption. We do have the Indigenous majority of the demographic here in the Northwest Territories. So it’s only right that we work in collaboration with the governments of Canada and the Northwest Territories to look at adopting, as I stated earlier, this milestone legislation, because a concept of partnership, that was raised earlier, is what we are after — having that partnership with governments of Canada and the Northwest Territories to execute the commitments that were originally contemplated in Treaty 11 and then further defined in our Gwich’in Comprehensive Land Agreement.
As long as we have the opportunity to provide input into that implementation plan, that’s what we are seeking. It is when we don’t have that input that it becomes problematic and we are simply being directed at how this declaration will be implemented at our community level.
Senator Coyle: Just a little follow-up there. What would give you confidence that you will have that input you’re asking for?
Mr. Kyikavichik: Officials on a working group.
Senator Pate: Thank you to all the witnesses for your important contributions.
My question is for Chief Montour. The committee, as you know, has heard testimony from legal scholars to the effect that judges do not have an existing duty to use the UN declaration as an interpretive tool and source of rights, but there is an issue of education and there is an issue of education of the judiciary — one that Bill C-15 has the potential to ameliorate. On multiple occasions courts have expressed hesitancy to use the UN declaration, even as an interpretive tool, due to the fact that while Canada has endorsed the declaration, it has not been domestically adopted.
While I understand you have concerns regarding the strengths of the bill’s potential use by the judiciary, do you see a value in the domestic codification of the UN declaration as is being proposed in Bill C-15?
Mr. Montour: Actually, I’m going to let Mr. Walsh answer that question.
Mr. Walsh: Thank you for your question. I think we agree that the legislation could or was an opportunity to clarify with certainty that the judiciary should be taking into account the declaration when it is adjudicating over Indigenous rights cases, but the legislation falls short of that. One key example of that is the difference in wording between the preamble and the actual section 4(a) of the bill itself.
The preamble says that the declaration is affirmed as a source of the interpretation of Canadian law. I would have preferred to see the laws of Canada. But the text of the law employs even weaker wording, to the effect that the declaration is an instrument with applications in Canadian law. That doesn’t actually refer to any known legal standard or principle of interpretation, so the wording is too vague to be useful. That’s why we’re questioning the enhancements that we’re requesting, to that effect.
The Chair: You wish to add to that Chief Montour?
Mr. Montour: No, I think Francis was quite succinct.
I would say sir, I think the wrong approach is to domesticate an international instrument to a state constitution. It’s not a domestic instrument. In order for it to have an application here, in a way that I deem to be vital, it needs to effect Canadian law.
Again, the Doctrine of Discovery and all of the things that come out, in terms of section 35, speak for themselves historically. It’s in the jurisprudence. Thank you.
The Chair: Thank you, chief.
Senator Anderson: Máhsi. My question is for Grand Chief Kyikavichik. You alluded to this, that the GNWT has stated its intention to become the second jurisdiction in Canada to implement the declaration.
How is the process of implementation going thus far? What is your engagement? Are there any lessons learned that may be useful to us in the federal context?
Mr. Kyikavichik: Máhsi, Senator Anderson. Great to see you again. Hope all is well.
In terms of the implementation of the UN declaration by the Government of the Northwest Territories, unfortunately their schedule was directly impacted by the COVID-19 pandemic. So our engagement thus far has been, most recently, back in April with other modern treaty holders. I had a meeting with Premier Caroline Cochrane and members of her cabinet regarding this item, amongst others, with a commitment to move forward directly with the Government of the Northwest Territories on a working group type of model.
It’s our concern this will be adopted without truly thinking about the implementation in advance, before it is adopted at a territorial level. We want to ensure that, as I stated earlier, what we have is something that is practical and something that we can move forward with, that will endure the change in governments moving forward over the longer term for our Gwich’in people.
That was the first question. Was there another one in there, Senator Anderson?
Senator Anderson: [Technical difficulties] on a federal level of the same bill?
Mr. Kyikavichik: Sorry, you were cutting out, Dawn.
Senator Anderson: Are there any lessons to relay to the federal [Technical difficulties] with the territorial government on the same bill?
Mr. Kyikavichik: I think I just requested it with the addition of the officials to the working group. However, I would like to see some sort of approach similar in some respects to what British Columbia undertook prior to their adoption of the bill, and engaging First Nations and Indigenous groups throughout the province. I know there are various interpretations of how that ended up for the province, but they did have a process of consultation with their member First Nations and Métis organizations in British Columbia. We would like to see the same so that we could provide our community perspective on how the adoption of this important legislation will shift the change in policy that we feel is required.
Senator Anderson: Máhsi.
The Chair: Thank you, chief. I’d like to begin the second round with Senator LaBoucane-Benson, followed by Senator Patterson.
Senator LaBoucane-Benson: Thank you, chair. I will pass my time on to the bill’s critic.
Senator Patterson: That’s much appreciated. Thank you, senator.
I would like to mention to my colleagues on the committee, in response to Senator Francis’s comment that critics of the bill — and critics of probably the confusion about the lack of clarity around consent, whose consent and whether lack of consent in some parties can be ignored — is being used to justify the defeat of the bill. I want to make it clear that I haven’t said a word about defeat of the bill. However, I’m not convinced it can’t be improved.
I’d just like to clarify with Chief Montour and Chief Monias — and I want to make sure I’m not co-opting anybody’s words. Can I be clear? Without the thoughtful amendments you have proposed, would you support this bill without the amendments you’ve proposed? Thank you.
Mr. Montour: I would like to give Chief Monias the opportunity to speak first and then I’ll address it.
Mr. Monias: I didn’t hear the question. It wasn’t directed to me at first.
Senator Patterson: Without the thoughtful amendments you have proposed, would you support this bill?
Mr. Monias: As I stated before, without real amendments throughout, it’s hard to support a bill that — it’s your bill. It’s the government’s bill. We have our own laws, treaties, inherent rights and jurisdiction, where we follow our own thing, but this bill is an action bill for the government and how they are going to govern their behaviour and their actions towards our people. We have seen in the past that we haven’t had really good reasons, and without these amendments that I stated, it would be hard to support the bill.
We have stated that this act should never be interpreted as upholding the rights of Indigenous people. It needs to be interpreted as administering those rights of Indigenous people. That’s what I want. I want the government to recognize those rights. I want the government to recognize us as governments, and they have to govern themselves accordingly. They have to use this opportunity.
The last time we had this was in 1982 with section 35. Now they have to come up with an implementation law to help us achieve those rights enshrined in section 35, also ensuring that our inherent rights, our operating rights, our treaty rights and our human rights are protected.
It’s the same thing with our international rights as Indigenous people. We want to make sure that UNDRIP is enforceable in Canada. That’s what we keep saying. Without that enforceability to make sure your people are governed accordingly, in how they treat Aboriginal people, it’s hard to support it. That’s what I will say.
I’m not against what you’re trying to do. I think it’s admirable. It’s a good start, but we need to take it further. I have so many provinces come to the table where the prime minister and the ministers have stated certain things that they are going to do with our nation, and they have not followed through with that because of the bureaucracy that exists that stops them. We want the statutory laws to make them do what they are told to do, for the right to protect our rights but also to establish good working relations with our people while upholding our Indigenous rights.
I’m not trying to veto anything. Not at all. I’m trying to say it’s the right thing to do. If you’re going to do it right, might as well go the full way. Don’t go halfway. Thank you.
The Chair: Thank you. Chief Montour?
Mr. Montour: Thank you. Before I begin my remarks, Senator Patterson, my condolences again for the loss of your friend.
Senator Patterson: Thank you.
Mr. Montour: The question that you ask is an important one, a question that has been asked and answered, I would put to you, in terms of the position of both the Mohawk Council of Kahnawà:ke and my work with the AFNQL, some of the First Nations of Quebec and Labrador. We’ve listened to any number of people who worked on drafting the bill, and I have listened to any number of those people speak before this committee. Too often, our legitimate concerns about the perceived deficiencies in the bill — we’ve cited two very important ones here today — it has been our view that we have been gaslighted a bit for raising those concerns, that we just plain don’t get it, that we don’t understand.
Listen, see this document? This is my personal copy of the United Nations declaration. I am passionately for this, and only for a bill that accurately begins to reflect this. I do not see that in Bill C-15 in its current form.
The Chair: Thank you, chief. The time for this panel is now complete. I wish to thank our witnesses for meeting with us today. I wish to thank Grand Chief Kyikavichik, Chief Montour, Mr. Walsh, Chief Peigan and Chief Monias.
We will commence our pre-study of Bill C-30, An Act to implement certain provisions of the budget tabled in Parliament on April 19, 2021 and other measures. Today, we will be looking specifically at Divisions 10 and 31 of Part 4 of the bill.
I wish to welcome our panel of witnesses from Crown-Indigenous Relations and Northern Affairs Canada, Garima Dwivedi, Director General, Resolutions & Partnerships; Leanne Walsh, Director, Fiscal Policy and Investment Readiness; and Jeffrey Clark, Legal Counsel.
Joining us from Indigenous Services Canada are Christopher Duschenes, Director General, Economic Policy Development Branch, Lands and Economic Development; Yves Denoncourt, Director, Governance Operations Directorate, Lands and Economic Development; and Karl Jacques, Senior Counsel, Operations and Programs (LSU), CIRNAC/ISC Legal Services.
From the First Nations Finance Authority, we have Ernie Daniels, President & Chief Executive Officer, and Steve Berna, Chief Operating Officer.
From the Acho Dene Koe First Nation, we welcome Gene Hope, Chief, and Madeleine Mackenzie, Lawyer, Power Law.
Ms. Dwivedi, Mr. Duschenes, Mr. Daniels, and hopefully, Chief Hope and Ms. Mackenzie, who will share their speaking time, each will provide opening remarks of approximately six minutes, followed by a question-and-answer session with senators for approximately three minutes per senator.
If senators have a question they are asked to use the raise hand feature on Zoom to signal this to the clerk. This will be acknowledged in the Zoom chat.
Please note that APPA Committee members will be given priority on the list of questioners. Any written follow-ups to questions should be submitted to the committee clerk no later than May 30, 2021.
The committee staff will advise me, as chair, via text, when there are 10 seconds remaining of speaking time of both the witnesses’ introductory remarks and the senators’ question-and-answer time. I will do a 10-second visual hand sign using both hands. And when I reach zero, I will let you know that the allotted time is finished.
I now wish to welcome Ms. Dwivedi to begin her opening remarks.
Garima Dwivedi, Director General, Resolutions & Partnerships, Crown-Indigenous Relations and Northern Affairs Canada: Thank you very much. Good afternoon, Mr. Chair. I’m joined here today by my colleagues Leanne Walsh and Jeffrey Clark.
I’m joining you from the unceded traditional territory of the Algonquin Anishinaabe people.
I am pleased to be here today to speak to you on the proposed amendment to the First Nations Fiscal Management Act which, if enacted, would expand the types of revenues that First Nations can use to support borrowing from the First Nations Finance Authority, or FNFA.
Since 2006, the First Nations Fiscal Management Act has enabled First Nations to voluntarily opt in to exercise jurisdiction over fiscal matters such as financial management, property taxation and local revenue generation.
The act also provides First Nations with access to long-term financing at preferred rates through the issuance of bonds on capital markets, allowing them to leverage their own sources of revenue to access capital for infrastructure and for socio-economic development, through which over $1.3 billion has been raised.
The First Nations Fiscal Management Act is led by First Nations, with more than 300 First Nations across Canada benefiting from the fiscal services offered by the regime’s three First-Nations-led institutions: the First Nations Finance Authority, the First Nations Financial Management Board and the First Nations Tax Commission.
I understand that you will be hearing from Mr. Ernie Daniels, President and CEO of the First Nations Finance Authority, and Mr. Steve Berna, Chief Operating Officer, as well today.
Crown-Indigenous Relations and Northern Affairs Canada works on an ongoing basis with these three key partners First Nations institutions to continuously improve the act. These institutions also engage extensively with the signatory First Nations who have opted into the First Nations Fiscal Management Act.
The amendment being proposed is one that the First Nations Fiscal Management Act institutions and their members have wanted for some time now. Currently, First Nations cannot use the First Nations Goods and Services Tax or the First Nations Sales Tax as their revenue source for pooled borrowing through the First Nations Finance Authority, because section 67 of the Financial Administration Act prohibits the assignment of Crown debts. It had been considered that borrowing revenues from the First Nation First Nations Goods and Services Tax and the First Nations Sales Tax would likely constitute an assignment of Crown debt. The proposed amendment would remove this impediment.
The wording of this new provision, including the subsection stating that it is not binding on the Crown, is consistent with similar provisions in other federal legislation that make exceptions to section 67 of the Financial Administration Act.
If this amendment is enacted, the related regulations on financing secured by other revenue regulations would also be amended. This proposed change would remove the obstacle First Nations have had and enable them to use, should they choose, the First Nations Goods and Services Tax or the First Nations Sales Tax as a source of revenue to secure long-term financing through the First Nations Finance Authority. Thank you.
The Chair: Thank you very much, Ms. Dwivedi. I’d like to ask Mr. Duschenes for his opening remarks.
Christopher Duschenes, Director General, Economic Policy Development Branch, Lands and Economic Development, Indigenous Services Canada: Good afternoon. It is a pleasure to be here. I’m also, as Ms. Dwivedi said, speaking from the unceded traditional territory of the Algonquin Nation. I’m accompanied here by Mr. Yves Denoncourt, Acting Director of Governance Operations, and Mr. Karl Jacques, Senior Counsel, Operations and Programs for Legal Services.
We welcome this opportunity to explain the measure to retroactively validate the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases), which has been included in the budget implementation act, and to answer any questions.
In March 2020, early in the COVID pandemic, many band councils governed by the Indian Act and the First Nations Elections Act were faced with a dilemma — either hold an election in their community during the pandemic, despite strong advice from public health experts to avoid gatherings and social interactions that could contribute to the spread of COVID-19, or wait for their terms to expire and leave their communities without leadership, thus creating a governance gap.
Neither the Indian Act nor the First Nations Election Act have provisions for chiefs and councillors to extend their terms. In response to First Nation public health concerns surrounding the pandemic, the Governor-in-Council, on the advice of the Minister of Indigenous Services, made the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases), which came into force on April 8, 2020. The regulations allow all First Nations chiefs and councils, including leaders from bands holding elections under a custom election code to extend the terms of office of elected and expiring chief and councillors up to six months, with a potential second extension up to another six months.
The decision to postpone an election is under the purview of chiefs and councils, and must be made by the First Nation through a submission of a band council resolution to the Minister of Indigenous Services.
The regulations were enacted with a sunset clause of April 8, 2021. On April 1, 2021, the Federal Court found that section 4 of the regulations — specifically enabling chiefs and councillors of bands holding elections under their own custom election code to extend their mandate — was ultra vires and invalid.
The Government of Canada, as mentioned earlier by the chair, is appealing the court decision. As of April 8, 2021, the regulations have been extended for a six-month period with a sunset clause of October 8, 2021.
Division 31 of the budget implementation act seeks to retroactively validate the regulations to ensure that actions taken by councils during the period of postponement were and continue to be valid. The postponement measures will give legal basis for the regulations and will address the April 1, 2021 Federal Court of Appeal’s finding of invalidity of section 4.
Thank you very much.
The Chair: Thank you very much, Mr. Duschenes.
I’d like to invite Mr. Daniels for his opening comments.
Ernie Daniels, President & Chief Executive Officer, First Nations Finance Authority: Good afternoon. I’m calling from the Westbank First Nation here in the beautiful Okanagan, along with my colleague Steve Berna.
On behalf of the First Nations Finance Authority, I would like to thank committee members for the opportunity to speak on Bill C-30. As you are aware, the First Nations Finance Authority, or FNFA, is an independent, First-Nation-led, not-for-profit corporation. It provides First Nations with access to capital by pooling their borrowing power and issuing debentures on capital markets that are secured by their own source revenues, that then lend the capital generated by those debentures to the same First Nations at lower rates and with longer repayment terms than they could obtain through banks.
The FNFA acts as a central borrowing agency for the 121 First Nations that have met the strict financial management and accounting standards required under the First Nations Fiscal Management Act, to be eligible to become borrowing members. Their own source revenues provide security for the debentures and enable them to service the loans received from the FNFA. As a matter of prudent management and to enhance investor confidence, the FNFA conducts extensive due diligence before a First Nation may become a borrowing member and carries out annual internal reviews of its financial strength and performance.
To date, the FNFA raised almost $1.5 billion on behalf of First Nations members, and we anticipate crossing the $2-billion threshold this year.
To put this in context, though, the infrastructure gap between First Nations and other communities in Canada is estimated to be at least $30 billion. That is, it would take an immediate investment of $30 billion to bring First Nations infrastructure up to the average level enjoyed by other communities.
It is also important to note that because the revenue sources that First Nations can utilize to raise funds through the FNFA are limited by law and regulation, we are finding First Nations are nearing their borrowing ceiling. This means, without a change in policy or approach by Canada, that those communities will have to rely on the traditional pay-as-you-go model used for First Nations infrastructure, meaning they will fall further behind other Canadian communities.
The federal budget presented on April 19 made a number of broad commitments in announcing new funding related to infrastructure in First Nations and other Indigenous communities. Of particular interest, and the reason we’re here today, the budget announced the government’s intention to amend legislation and regulations to expand the types of revenues that First Nations may use to support borrowing from the First Nations Finance Authority, specifically to include revenues from the First Nations Goods and Services Tax and the First Nations Sales Tax.
For First Nations that have agreements with Canada regarding the First Nations GST or the First Nations Sales Tax, this would mean an increase in their borrowing ceiling through the FNFA. While we do not have exact figures to hand, this would allow the FNFA to raise funds in capital markets that could be used to finance much-needed infrastructure and economic development projects today.
Division 10 of Bill C-30 is meant to implement the budget’s commitment vis-à-vis the First Nations GST and the First Nations Sales Tax. I won’t read out the relevant clause, but it is clause 193 of Bill C-30.
FNFA is very supportive of this measure. Indeed, we worked closely with Department of Finance officials to develop the wording that appears in Bill C-30. We very much appreciate the department’s positive response to our recommendations, their collaborative effort with us, and their inclusion of this measure in both the budget and Bill C-30.
The wording as drafted is also flexible enough to allow the future inclusion of other types of revenue. The budget proposes to provide more flexibility for First Nations to implement taxes within their own lands on goods like fuel, alcohol, tobacco and cannabis. If and when individual First Nations do so, it makes sense that those revenues will also be eligible to obtain FNFA financing.
Our written brief does identify a need to update the financing secured by other revenue regulations to ensure consistency between those regulations and the new legislative language. We are sure the Finance officials have already taken this into consideration. We mention it simply to be on the safe side.
FNFA supports what the government is trying to achieve with this measure. It is a positive recognition that when they have the appropriate tools, First Nations become empowered to develop and implement their own solutions to the challenges they face.
The budget’s announcement of significant new funds for Indigenous infrastructure is also welcome. As large as the numbers seem, though, they are spread over several years, and we are concerned that by using a traditional pay-as-you-go approach, the federal government’s financial commitment will not have as great an impact as could be achieved through other approaches.
To catalyze and accelerate infrastructure development, the FNFA has proposed a system of monetization whereby future federal infrastructure dollars — either existing funds or a new dedicated stream — would be committed in such a way as to allow the FNFA to raise the net present value in capital markets and to make a great deal more funding available to communities in the short term.
We have shared a briefing note on monetization with committee members, and I have already had the pleasure to meet with some of you.
While it is beyond the scope of Bill C-30, and indeed was not mentioned in the budget itself, the securitization of new sources of revenue is, in and of itself, a form of monetization, albeit at a smaller scale than ideal. The FNFA would welcome the opportunity to have in-depth discussions with committee members about monetization so that we can identify and address risks and potential objections, and potentially work towards a pilot project demonstrating the impact that a new approach by the federal government could have. Thank you.
The Chair: Thank you, Mr. Daniels.
Senators, unfortunately Chief Gene Hope is unable to connect with us because of technical issues, but we are fortunate to have with us Madelaine Mackenzie, who is a lawyer at Power Law, on behalf of Acho Dene Koe First Nation.
Ms. Mackenzie, please give your opening remarks.
Madeleine Mackenzie, Lawyer, Power Law, Acho Dene Koe First Nation: Good afternoon, senators, and thank you for having me here today. I join you from the territory of the Squamish Nation to address Division 31 of Bill C-30.
Acho Dene Koe First Nation represents the descendents of Fort Liard Dene. The community is based in Fort Liard in the Northwest Territories.
Acho Dene Koe’s elections have always been governed by custom. Acho Dene Koe was scheduled to have elections for chief and council in June 2020. After the Government of the Northwest Territories declared a state of emergency due to COVID-19 in March 2020, Acho Dene Koe was contacted by the federal government about the First Nations Election Cancellation and Postponement Regulations. Acho Dene Koe was informed by the federal government that Canada recognized the public health risks associated with holding an election during a pandemic and recommended that elections not go forward.
Chief and council were concerned about holding elections during the pandemic. Fort Liard is a remote community, and the health services are limited. For example, there is no permanent doctor in the community. Many families also live with multiple generations in one household.
Chief and council were concerned that an outbreak in the community would spread quickly and affect many people in the community, including elders. In April 2020, chief and council considered options for postponing the upcoming elections to protect community safety. There is nothing in the custom election code that allows the chief and council to postpone elections because of a health emergency. There were some past instances where chief and council had postponed elections in unique circumstances, and chief and council believed there was some indication of an unwritten customary practice to support postponing the elections. However, chief and council also thought the regulations provided a backup authority for postponing the elections if the custom was not enough.
In September 2020, there were still concerns about holding elections during the COVID-19 pandemic, and chief and council postponed the elections a second time. After that, a member of the community brought a Federal Court challenge asserting that there was not authority to postpone the elections.
I would like to provide some legal context. There are essentially three types of First Nations under the Indian Act: those who hold elections pursuant to the Indian Act; those whose elections were once under the Indian Act, but who reverted to a customary process, and; those whose elections have always been governed by custom. For First Nations in the latter two categories, the Indian Act does not apply to their elections. As I mentioned, Acho Dene Koe First Nation falls into that third category. Their elections have never been governed by the Indian Act.
In an effort to allow First Nations to prevent the spread of COVID-19 in their communities, the regulations created last April under section 73(1)(f) of the Indian Act purported to allow First Nations to postpone elections without risking a governance gap. However, the Federal Court decision released on April 1 this year concluded the regulations were beyond the purview of the Indian Act insofar as they applied to custom election First Nations.
Central to the court’s analysis is the simple fact that the Indian Act does not regulate customary elections. It recognizes customary election laws, but First Nations are empowered to enact those laws or follow those laws through their inherent right to self-government.
I caution that our analysis on the provision contained in Division 31 of Bill C-30 is preliminary. However, on its face, it does not appear to respond to the issues raised in the Federal Court’s recent decision. More specifically, it does not appear to rely on any alternative authority for regulating First Nations customary elections than the regulations did.
Acho Dene Koe welcomes Parliament’s recognition that there should be flexibility for all governments, including Indigenous governments, to respond to the COVID-19 pandemic to protect their communities’ safety. Indeed, First Nation communities face heightened risks associated with COVID-19.
The litigation regarding the regulations created a lot of uncertainty in the Acho Dene Koe community. There was a risk chief and council could be removed from office retroactively, which could have nullified any actions they undertook during that one-year period. While the Federal Court ultimately did not grant this remedy, other custom election First Nations which have relied on the regulations, or which will rely on the regulations, could face similar challenges.
Acho Dene Koe also incurred significant legal costs in defending its decision to postpone the elections, including defending the validity of the regulations.
It is important that the provision in Bill C-30 provides a stronger footing for custom election First Nations to postpone elections due to COVID-19 to avoid these same uncertainties. Acho Dene Koe urges the Senate committee members to ensure that the mechanism adopted to protect First Nations communities is responsive to the Federal Court decision.
In particular, it is important to ensure that the mechanism adopted addresses the diversity in First Nations election regimes and takes into account that many First Nations, like Acho Dene Koe, conduct their elections according to custom, without interference from the federal government. These First Nations should have an equally sound footing for protecting the safety of the community as do First Nations under the Indian Act. Thank you.
The Chair: Thank you very much. I would like to open the floor for questions.
Senator Coyle: Thank you very much to all our witnesses. Welcome back, Mr. Daniels, to our committee. I have a question for you. I understand you are in favour of this aspect of the bill.
Could you describe for our committee members what kind of real-world impact this expansion will have on First Nations communities? We have heard a bit about the big picture, so maybe a little more about the big picture and potential, but also if there are any examples of what communities are waiting to finance right now, anything they haven’t been able to do because of lack of resources. Could you fill us in on some of the colour commentary? Thank you.
Mr. Daniels: Thank you for that question. As you’re aware, First Nations didn’t have the opportunity to leverage any revenues raised by the Goods and Services Tax where they have arrangements with Finance Canada.
I will give you an example of a First Nation that we dealt with some years ago in B.C. They were building a multiplex that provided the community different services, including a band office, recreational centre and health centre. They were able to use part of their revenues to leverage towards the building. They would have liked to have used the Goods and Services Tax they collected, but they weren’t allowed to. Instead, they had to go to traditional financing sources that didn’t allow them to leverage the amount of money they needed. That was a bit of a difficulty for them in terms of seeing the project through in a timely manner.
We’re aware that there are 60 First Nations right now in Canada that have agreements for Goods and Services Tax with Finance Canada. That is sort of the pent-up demand that potentially could be coming. It will be positive because, as I mentioned, our communities have an infrastructure gap that is pretty big and it’s going to take more than this type of revenue to close that gap, along with other revenues that we need to have in place.
We have noticed that most of the First Nations that borrow with us are doing three or four things.
One is to build infrastructure. They need infrastructure. We have had communities even build their own schools. They couldn’t wait for the funding through the current mechanisms.
Other First Nations are investing in economic development to generate further revenue so they can pay for other services within the community.
Other First Nations choose to buy land, to expand their land base, so they can enter into economic development and do housing and other things they need.
I’m going to turn it over to my colleague Steve Berna to add anything else to that.
Steve Berna, Chief Operating Officer, First Nations Finance Authority: Thank you for the question, senator.
Taking a look at some numbers, I’m going to give you two examples. One is the community that Ernie mentioned, which is an urban community. The second example will be one that is outside of an urban area but still along a highway, so there is traffic flow. It is not remote.
FNFA’s act allows us to provide loans up to 30 years. The same as each of you probably leveraged your paycheque into car loans or house mortgages, this budget implementation act will allow the leveraging of these new revenue streams into loans up to 30 years. The impact of that is that every dollar communities earn under FN GST or sales tax will be leveraged 18 times.
The community Ernie mentioned collected $1.731 million in GST. That leverages into a loan of $30 million if they had been able to for their community priorities — very material. We could not do it a number of years ago, but we could today.
The second community, which is outside of an urban area, has a much smaller amount. FN GST is $137,000. Not an urban area, not as many people buying. That leverages into a loan of $2.466 million. When communities have priorities, every dollar counts, and leveraging of 18 times on any new revenue stream is material and will make a material difference to their priorities going forward.
This is very welcome. Hopefully, new revenue streams will come on board. You can see the impact of pay-as-you-go. It falls behind. Leveraging 18 times, it catches up. Thank you.
Senator Tannas: My question is to Mr. Daniels. As I understand it, this for sure brings in GST, sales tax and property tax; is that correct?
Mr. Daniels: Yes, that’s correct. Property tax is already available under the act as it exists.
Senator Tannas: Is there anything else that you can conceive of that could be brought in under the wording that is here? Maybe I’ll leave it there. Is there anything else, either currently or that you can imagine would be brought in, other than the GST sales tax?
Mr. Daniels: Yes. We believe that any infrastructure funding could be utilized to leverage into the future. It would mean having the money available for a number of years, like you would do with a mortgage on a house. We believe the language is flexible enough to bring in this type of revenue. It could be an existing source or a new source. Right now, I think Indigenous Services Canada’s infrastructure budget is just over $2 billion. Leveraging a portion of that by 18 times will go a long way. If you take a billion dollars, for instance, we can generate $18 billion, which will close the gap that we need to close. This is where I think we need to go.
Senator Tannas: Will that mean you would get commensurate assurance from the government? If I understand what you’re saying, if a community got a commitment for a million dollars this year for capital funding for capital spending — housing, whatever — in the year you were issuing the bond, you would say, “We got a million this year. Let’s just assume — or we’ll represent — that we will get a million next year, the year after that, and for the next 30 years.”
My understanding from other Aboriginal meetings I’ve attended over the years, one of the biggest issues was that it wasn’t possible to get long-term, steady funding commitments. Has that changed?
Mr. Daniels: No, it hasn’t changed. I do remember speaking to you a number of years ago, and it hasn’t changed.
Senator Tannas: The program has been a success, no question about it, but are we introducing any new level of risk for communities if they say, “Well, because I got a million this year, I can borrow $18 million this year, but I have no guarantee I’m getting a million next year, or the year after or the year after, for 30 years”? Is there an element of risk there that you’re concerned about or have I misunderstood something?
Mr. Daniels: There is definitely an element of risk if funding doesn’t go beyond one year. That’s what we call the pay-as-you-go system.
Senator Tannas: Yes.
Mr. Daniels: It obviously is not working, otherwise we wouldn’t have such a large infrastructure gap.
Senator Tannas: Exactly.
Mr. Daniels: There needs to be a mechanism or a commitment to provide a stream of a million dollars for the next number of years, in excess of 10 years, to make it worthwhile. That’s what we’re looking for. We are actually promoting to see if we can get a pilot project going to test out the processes and how it could work.
I will ask Mr. Berna to add to that, because we’ve been having discussions with a number of departments over the last few years.
Mr. Berna: Senator, there is nothing wrong with pay as you go if the money in your piggy bank is growing equal to inflation or faster. The problem happens when the cost of projects starts outpacing how much you’re putting into your piggy bank each year and that’s what is happening. Everybody has seen what has happened with house prices. Construction costs are the same; they’re escalating.
We submitted a four-part plan. Part 1 would be First Nations submit to Canada their community priorities. Part 2, Canada would review those priorities and determine which ones fit within the mandate of the government for funding. Part 3, FNFA will go borrow the money on the capital markets to fund these projects, and our current cost is about one tenth of 1% above the Province of Ontario, so they are very competitive rates. And part 4 is Canada, the First Nations and FNFA get into an agreement that Canada will fund the loan service costs for a chosen period of time.
Senator Tannas: Great. Okay. That answers my question. But you’re talking about the hope for a pilot project. This would front run the reality, right? As I understand it, you don’t have that project right now but you’re creating the environment in anticipation and in the hope that we will finally get to see that kind of long-term annual funding, that would allow leverage. This has got a little bit of future looking in it, in addition to pledging stuff you couldn’t pledge before; is that fair enough?
Mr. Daniels: That’s fair. That is correct.
Mr. Berna: One key benefit is FNFA doesn’t work under a federal act, we also work under contractual law with our First Nation members that voluntarily join. That contractual law has in it maintenance obligations, so the fair life of an asset will remain for its fair life or expected life. That means Canada will fund now, but won’t replace until the fair life is ended, and I think that suits all parties’ benefits.
Senator Tannas: Yes. Thank you very much, gentlemen.
The Chair: Thank you very much. I would like to welcome Chief Gene Hope from Acho Dene Koe First Nation. Thank you for joining us.
Senator Patterson: I have the highest regard for the FNFA and I’m very pleased to see you before our committee once again.
We have supported your recommended amendments to enhance your authority in the past, and I expect and recommend we should do so again. It’s really impressive that you certified 121 First Nations to meet your strict accounting standards, but I have a few questions looking forward.
You have answered a question about progress on the law and changing the law to allow monetization of stable sources of revenue from governments. The sales and property and First Nation revenues is only one source of revenue that we’re dealing with today, and you said you would like to ask our committee to support that. I imagine that won’t be a challenge. We’ve discussed this with you for some years. Are you getting a receptive ear from officials and the minister?
I have another quick follow-up on that question. Thank you.
Mr. Daniels: It’s really nice to talk to you again, Mr. Patterson.
We’re getting a receptive ear. We’ve heard that there is support for it from the top down, but it always comes back with the same answer that there is no source of funds. There is a will, but it is sort of a way, and we need the means to make it happen. The means is that source of funding.
Senator Patterson: That leads me to my next question. You mentioned the Indigenous infrastructure fund that was in Budget 2021 and it’s some significant billions of dollars, although spread over years, as you say. I’ve been trying to find out how this fund will work? How do you apply? What are the criteria? I’m not getting any clear answers, nor are Indigenous communities getting answers as I understand it.
Here is a new source of funds. Do you envision that these Indigenous infrastructure funds announced in the budget could be made available to certified First Nations, through FNFA, to leverage those funds to borrow even more money? Is that a possible source to narrow this huge infrastructure gap that you’ve described?
Mr. Daniels: Like yourself, I don’t know many of the details of how the funding is going to be rolled out, but in order for our model to work — our proposed model for monetizing annual appropriations, if you wish — we need to do it over a longer period of time than what is proposed in the budget. It won’t work even if it’s under five years. That would be very difficult. Anything over five years is possible, but I’m an accountant and so is Mr. Berna and we’re looking at it trying to save money in the long run for Canada, to leverage over an extended period of time of at least 20 to 30 years. We think that’s what would be appropriate in the normal way of how infrastructure is financed in other levels of government with the private sector.
Senator Patterson: Thanks very much. Good luck. I’m with you on that 100%.
Senator Pate: Thank you to the witnesses. My question is for the government. In the wake of COVID-19, the social and economic challenges facing Indigenous communities on and off reserve requires legislative attention, which I believe is part of what Bill C-30 tries to address. I’m curious as to how these amendments to the FNFMA will help eradicate poverty and social challenges in Indigenous communities and, more specifically, how Bill C-30 can be used as an instrument for closing socio-economic gaps affecting First Nations and Indigenous peoples in all contexts, and whether other legislative instruments and amendments are being considered.
Ms. Dwivedi: Thank you very much, senator. In terms of the question that you had for the impacts of COVID on socio-economic challenges, the particular piece on Division 10, in terms of accessing First Nations GST and First Nations sales tax as revenue sources for capital, that will actually have an impact in terms of assisting economic development.
As per the examples given by Mr. Daniels and Mr. Berna, the same is true for the social impacts, as well.
There are other pieces to the bill, but I can’t speak to all of the other pieces.
Senator Pate: Would anybody else like to comment? Perhaps a non-government representative?
Leanne Walsh, Director, Fiscal Policy and Investment Readiness, Crown-Indigenous Relations and Northern Affairs Canada: I could add to what Garima mentioned. We are continuously working with fiscal institutions to update the First Nations Fiscal Management Act and the related regulations, so there might be further progress. We’re hoping that will be in the near future, but that work is currently underway, to continuously remove barriers and enable First Nations to leverage other revenue sources.
Mr. Daniels: Right now, with the investment that FNFA has made in First Nations to do a number of things, there has been an estimated creation of 15,000 and more jobs, so that’s pretty significant, and the impact on the economy is at least $3 billion. Any time we add a new revenue stream to this, it means a positive impact on the Canadian economy, as we see it. Jobs created and impacts upon the economy are really needed at this point in time.
Right now, there are a number of shovel-ready projects that exist within the First Nations that are current borrowing members. It’s estimated at $1 billion. We undertook this work. It’s like a stimulus; if there is a stimulus going to happen, there are projects ready to go. That means more job creation and more impacts on the economy — now, immediately, when we need it the most. Thank you.
Senator Tannas: Mr. Daniels and Mr. Berna, maybe you can confirm this, but I’d like to get back to this idea of multi-year capital funding commitments from the government and then being able to take those and leverage them multiple times. Just so that people understand, if the multi-year capital commitment is to build houses, then the leverage would be used to build houses, not to invest in some business somewhere that might or might not survive. The two would kind of be tied together, wouldn’t they? Or would you get into that level of granularity with bondholders?
I know you will have thought of this a whole bunch of different ways — I have lots of faith — but if you could confirm that we don’t wind up in a situation where capital funding is funding a bond that’s going to go into some other venture that may or may not be infrastructure and that may have other risks with it.
That’s number one.
Number two is this: Could you provide an update? My understanding is that the bonds issued are pooled; they’re not separated by community. If that’s the case, I can’t remember but I assume the pool is joint and severally guaranteed, or if one community fails on their piece, do the others have to make it up?
Also, you have been in business now for a while. Have you had any defaults?
I know those are a boat load of questions.
Mr. Daniels: I will ask Mr. Berna to answer those.
Mr. Berna: The first question was on transparency. Each community that submits a loan request does it under what’s called a borrowing law. The borrowing laws are put on our website, and they are also viewed by our lawyer, who has to do a legal opinion to the capital markets that the expenditures were done properly, the loans were done properly and the laws were done properly. So there is transparency on request and usage.
Second, regarding the question of borrowing as a group, we do borrow as a group. No First Nation is large enough by itself to access the capital markets; they simply wouldn’t be interested in the loan size. If you aren’t interested in the loan size, that means you’re starting to chase investors to give you money, and that means interest rates go materially higher until you find one that’s interested. So borrowing as a pool is essential to get Ontario rates.
Regarding joint and several — and there is lawyer Jeffrey Clark on here — First Nations say that every First Nation, all 121 that joined FNFA, must meet the same economic test, the same financial test and the same internal capacity test. They’re all jumping over the high bar together. Once that’s done, it’s staff’s job to monitor that those ratios are maintained, the economics are strong and that the transparency is also maintained.
So we do borrow. If a community ever did not pay its loan, the rest in the borrowing pool would step up. It has never happened. Our first loans went out in June 2012.
To show you the strength of our pool, we collect $141 million through what’s called a trust system. Our interest paid to bondholders is $35 million, so there is four times more money coming in than is going out in interest payments to bondholders. That’s called a coverage ratio — a four-times coverage ratio. It shows that, as our members join, our board of directors, our chiefs and councillors — they self-police. So we will not get into a system where First Nations are joining, threatening the pool, because self-policing means you’re keeping the strength, the same tests and the same monitoring.
So we do guarantee, or else we simply couldn’t access the capital markets at the rates. But it is well structured to ensure there are no loan defaults. And we have never experienced one.
The Chair: Chief Hope, I’m glad you’re able to join us. Ms. Mackenzie has provided opening comments on behalf of ADK. We still have a few moments left, I will give you the opportunity to make any remarks to the committee. We would be interested in your views.
Gene Hope, Chief, Acho Dene Koe First Nation: I know there were some things going on concerning elections and what the government came out with concerning First Nations election postponement legislation. Now that it has gone through the courts, it’s affected us in a way that — we used the legislation to protect our people at the beginning of the pandemic. That was our main concern, especially with Government of N.W.T. closures of the borders and the announcement the public health officer made in March last year.
So I just wanted to speak on that and how it actually benefited us in a way that kept us safe up until now. We used the regulation twice to our benefit on keeping the community safe. After the first extension, we chose to go with the second extension, because during that time that we made our second decision, I was at a meeting in Yellowknife, and one of the concerns that was brought up at the meeting with government was that the second wave was about to hit. Having that kind of announcement from the Government of N.W.T. executives, the premier and stuff like that, it got out there and worried people even more. Then we were supposed to go into the election.
We put it off using this regulation to the benefit of protecting our people, not thinking that we did not have the authority to do so under a custom election. To me, it was very beneficial, being a customary election First Nation.
We took it as a way of protecting our people, but at the same time, being a customary gives us the ability to take into consideration this, by the government that put these in place for the benefit of the First Nations, to stay safe and to be able to use it to our benefit, especially with the announcements that were made with the pandemic. In our customary election code we didn’t have anything like this happen in the past. It was very concerning to our elders in the community that we should keep our people safe and keep leadership in place during this time. That was part of the reasons why we also made this decision to use these regulations.
The Chair: Thank you, chief. Are there any further questions before we wrap up?
Mr. Hope: Yes. Referring to the Indigenous infrastructure. Right now in the North in our community in the Dehcho — I don’t know how much you have been watching the news, CBC News North and APTN — a couple of our communities here in the North have been hit by flooding. The communities have been devastated, and we have been trying to do our best to comfort the communities and help with people’s needs and food and stuff like that.
I think this would be something that would be very beneficial to the First Nations [Technical difficulties] rebuilding, because in one community there were only four houses that weren’t affected. The rest were devastated by the floods. The community, Little Buffalo River, I believe it’s east of Hay River, was devastated the other day and completely underwater.
So it’s a time of need right now in the North, especially in the Dehcho. We’re trying to work together. Hopefully this First Nations Infrastructure Fund will be of benefit to us in helping these communities rebuild. Thank you.
The Chair: Thank you, chief. Last call for questions or comments.
The time for this panel is complete. I wish to thank our witnesses for meeting with us today. I wish to thank Ms. Dwivedi, Ms. Walsh, Mr. Clark, Mr. Duschenes, Mr. Denoncourt, Mr. Jacques, Mr. Daniels, Mr. Berna, Chief Hope and Ms. Mackenzie.
Honourable senators, we will now take a momentary pause and move the meeting in camera in order to provide drafting instructions to our analysts.
(The committee continued in camera.)