THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
OTTAWA, Friday, May 28, 2021
The Standing Senate Committee on Aboriginal Peoples met by videoconference this day at 10 a.m. [ET] to examine the subject matter of Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples.
Senator Dan Christmas (Chair) in the chair.
The Chair: Honourable senators, I wish to welcome all of you and our viewers across the country who might be watching on sencanada.ca to the Standing Senate Committee on Aboriginal Peoples.
Before we begin, I’d like to acknowledge that we are meeting today on the unceded lands of the Algonquin Anishnaabeg peoples.
There are a few housekeeping items to go over. I’d 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.
In order to safeguard confidentiality of conversations, I remind senators, their staff and committee support staff participating in this meeting that it is their responsibility to ensure that the environment in which they find themselves is private and that conversations held in the context of this committee meeting cannot be overheard by third parties. Participants should know to 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, and I have the privilege of chairing this committee. I would like now to introduce the members of the committee who are participating in this meeting this morning: Senator Margaret Dawn Anderson from Northwest Territories, Senator Mary Coyle from Nova Scotia, Senator Josée Forest-Niesing from Ontario, Senator Brian Francis from Prince Edward Island, Senator Nancy Hartling from New Brunswick, Senator Patti LaBoucane-Benson from Alberta, Senator Michael MacDonald from Nova Scotia, Senator Kim Pate from Ontario, Senator Dennis Patterson from Nunavut, Senator Carolyn Stewart Olsen from New Brunswick, Senator Scott Tannas from Alberta and Senator Pierre Dalphond from Quebec is also attending the meeting this morning. Later on today, we’re expecting Senator Brent Cotter from Saskatchewan.
Now it gives me pleasure to introduce our witnesses this morning. We have with us the Honourable Arlene Dunn, Minister of Aboriginal Affairs for the Government of New Brunswick. We also have Grand Chief Okimaw Vernon Watchmaker from the Confederacy of Treaty Six First Nations. From Fort McKay First Nation, we have Chief Mel Grandjamb; Mike Evans, Senior Manager, Government Relations; and Chris Johnson, Chief Executive Officer. From the O’Chiese First Nation, we welcome Chief Douglas Beaverbones; Beatrice Carpentier, Band Manager; and Norma Large, Legal Technician.
Minister Dunn, Grand Chief Watchmaker, Grand Chief Grandjamb and Chief Beaverbones will provide opening remarks of approximately six minutes, which will be followed by a question-and-answer session with senators for approximately three minutes.
Chief Beaverbones wishes to give his opening remarks in the Anishinaabe Saulteaux language. He has provided our staff with the English translation of his speaking notes. Does the committee agree to circulate this immediately before his presentation?
Hon. Senators: Agreed.
The Chair: Thank you, senators. I see nods and agreement. Please note that he is advised that, due to time constraints, he will only say the first paragraph and the second-to-last paragraph in this document.
Once we get to questions, 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’re asked to use the raise hand feature on Zoom to signal this to the clerk. They will be acknowledged in the Zoom chat. Please note that committee members will be given priority on the list of questioners.
Any written follow-ups to questions should be submitted to the committee clerk no later than May 30, 2021.
Committee staff will advise me via text when there are 10 seconds remaining for the speaking time of both witnesses’ introductory remarks and senators’ question-and-answer time. I will do a 10-second visual countdown using my hands, and when I reach zero, I will let you know that the time has expired.
I will now turn to Minister Dunn for her opening remarks.
Hon. Arlene Dunn, MLA, Minister of Aboriginal Affairs, Government of New Brunswick: Good morning, senators and grand chiefs.
Thank you for the opportunity to present the views of the Government of New Brunswick on Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples.
That Indigenous peoples have rights in Canada, both individually and collectively, is not in dispute. Section 35 of the Constitution of Canada explicitly recognizes and affirms existing Aboriginal rights as well as treaty rights. However, this legislation seeks to expand that affirmation by applying it to a specific list of rights as set out in a 2007 declaration of the United Nations General Assembly.
The UN declaration, or UNDRIP, was designed to inspire UN member states in protecting the rights of First Peoples. The language of this non-binding resolution is aspirational and frequently very vague. Many of the rights set out in the declaration are available to all citizens of Canada, such as the right to live in peace and security, access to health care services and public education, freedom of religion and freedom from economic exploitation.
But Bill C-15 would, in our view, create new rights not contemplated in our Constitution, which would be detrimental to the long-term growth and prosperity of Canada. Our concern is that this legislation would create an absolute veto on economic development for one group without consideration to the interest of other members of Canadian society.
Canada is walking the path of reconciliation with its First Nations, Inuit and Métis peoples. Our journey has been long delayed, but we have begun. For 400 years, the First Peoples of Canada were subjected to injustices and brutality. I freely acknowledge the pain that this has caused, but we will not be able to right every wrong overnight.
In New Brunswick, we are committed to responding to the recommendations of the 2015 Truth and Reconciliation Commission’s final report. Extensive work has been done in this regard in the Province of New Brunswick. We are examining the United Nations Declaration on the Rights of Indigenous Peoples in the context of the full scope of the TRC report’s recommendations.
The federal government has chosen to respond to the TRC report’s recommendation to fully adopt and implement the UN declaration by embedding the full text of the UNDRIP into federal law. They have no authority to make that choice for New Brunswick or any other Canadian jurisdiction, and yet it appears they are doing just that. Bill C-15 states that the declaration is affirmed as a source for the interpretation of Canadian law — not federal law, as created by the Parliament of Canada, but Canadian law. This is one specific change that New Brunswick wants to see before Bill C-15 is given Royal Assent.
Our chief concern rests with the interpretation and implementation of articles in the declaration that speak to the obligation of governments to obtain, through consultation, the free, prior and informed consent of Indigenous people prior to taking actions that might impact them or their traditional lands. Consultation can lead to consensus on difficult issues, but not every time. One party or another may not be fully satisfied, no matter how early, how often or how sincerely they were consulted.
Governments must make decisions based on the best interests of all parties and society as a whole. No individual or group has the authority to make an absolute refusal when the good of everyone must be considered, and yet that is precisely what articles 19, 26 and 32 of the UN declaration set out to impose.
The declaration does not define “free, prior and informed consent,” nor does it state what “lands, territories and resources” means in this context. The Peace and Friendship Treaties signed in the 18th century between Great Britain and the Mi’kmaq and Maliseet people did not define territories. Therefore, in theory, at least, every acre of New Brunswick falls into the category of land that is by tradition owned, occupied or otherwise used by Indigenous people.
We will consult with Indigenous New Brunswickers on matters that concern their rights. We will make every effort to ensure such consultations are undertaken fairly, deliberately and with respect for all parties, but we cannot guarantee that we will achieve a consensus in every instance that will enable Indigenous people to collectively and unanimously give consent to each and every project.
The federal government’s objective of advancing reconciliation with Canada’s First Peoples is laudable, but hastily bundling these ill-defined principles into federal law may have the opposite effect, creating new barriers and divisions between Canada’s Indigenous and non-Indigenous peoples.
In your consideration of Bill C-15, I ask that you address these issues. Amend the legislation so that it explicitly states that Canada is not incorporating the UN declaration into domestic law and that it does not have broad application to the laws of Canada; the addition of a provincial non-derogation clause to clearly state the obligations imposed by the legislation are those of the federal government alone; a clear confirmation that the legislation does not purport to influence the interpretation of the Constitution and is not creating new Section 35 rights; clearly require the federal Minister of Justice to engage with provinces and territories —
The Chair: I’m sorry, Ms. Dunn. Your time has expired.
Ms. Dunn: I’m sorry. Thank you.
Okimaw Vernon Watchmaker, Grand Chief, Confederacy of Treaty Six First Nations: [Indigenous language spoken] We acknowledge the Creator for today, and we are thankful for the ceremony and prayers of our elders and people. I join you from the Treaty 6 Territory, traditional lands of the Cree, Dakota, Dene, Saulteau and Mohawk peoples.
Good morning, senators, chair, panel members and those watching online. My name is Okimaw Vernon Watchmaker of Kehewin Cree Nation and Grand Chief of the Confederacy of Treaty Six First Nations. We are 16 member First Nations and I have support from Onion Lake Cree Nation. I have been mandated by the chiefs to present to you today. You were provided a written submission.
I’m here to talk about the harm of passing Bill C-15 with respect to our treaty and treaty relationship with the Crown. On March 17, Treaties 6, 7 and 8 passed a resolution rejecting this flawed bill.
We must stop thinking of Bill C-15 as UNDRIP. This bill is far from what UNDRIP has set out to achieve. The rights and principles affirmed in UNDRIP constitute the minimum standards for survival, dignity and the well-being of Indigenous peoples throughout the world. Canada has chosen to abandon the intent of UNDRIP with this bill.
When speaking to the Senate, Minister Bennett said we need to shed a colonial past. We agree. The problem with this bill is that it will fortify a colonial future for First Nations. This bill does not legislate UNDRIP into Canadian law. In fact, UNDRIP is of non-binding mention. This will not provide a court with assistance during litigation.
Canada is using national organizations to manufacture consent while attempting to legislate out their duties and obligations under treaty. This legislation plan will be national and is already being worked on with the Assembly of First Nations, who do not hold treaty rights. This also violates the principles found in UNDRIP. The plan does not have any legislated rules for timelines, budgets, or any consequences if issues are not dealt with or fail to make the plan.
We reject the pan-Aboriginal approach to dealing with the obligations that are found in Treaty 6 or under the divisions of power in the Constitution Act under Section 91(24) or 35(1) and 35(2). This pan approach has been going on for decades and must stop. We are not the same. We are treaty First Nations. What works for one may not work for another. The principles of UNDRIP acknowledge and respect our autonomy. This bill violates those principles.
We do not consent to nor have we delegated any national organization to create rules that dictate how, when and with whom consultation will occur on matters that impact us. Attempting to create those rules under the guise of an action plan is a violation of our sovereignty, treaties, constitutional law and UNDRIP.
The process of creating the bill lacks meaningful consultation. Treaty Six First Nations were not contacted. Instead, selected individuals who are pro-Bill C-15 were heard. This violates our inherent right to self-government. Canada in the right of the Crown has a duty to adhere to our treaty relationship, which is affirmed through a bilateral process.
We have a long history of discussions with government. We know that unless legislated, government bureaucrats will not create equity within that process. In fact, the federal government has been negotiating with Alberta and failed to contact us. You heard from senior bureaucrats that consent is outside of that legislation, as well as a minister who stated consent to approve the action plan is not necessary and that Canada has the last word. All these issues are anti-UNDRIP. It is Canada’s way to provide optics that Indian issues are being dealt with, but in reality they are creating larger problems.
This bill attempts to domesticate our international relationship. This is a bid to reroute duties through national organizations rather than dealing directly with impacted nations. This is not in line with the principles set out in UNDRIP and fails miserably at respecting our inherent right to freely determine our political status and to pursue our economic, social and cultural development. It also violates legal norms that acknowledge our right to engage in meaningful processes when our rights are impacted.
Another issue that has been raised is how this bill creates certainty. This bill does the exact opposite. Because of our inherent right to govern ourselves, our people will not accept this. We will continue to assert our rights until they are recognized and respected.
I have heard through the course of the hearings that the government is not accepting amendments from the Senate at this time. This violates how laws are passed. This statement is disrespectful to the functions of government. The Governor General is the Chief Justice. If the bill passes, the Supreme Court may hear cases on this bill. Having the Chief Justice provide Royal Assent puts them in a real conflict.
Finally, the Senate has an important job. If you cannot amend it, then you must not approve it.
For all the reasons outlined, this bill cannot become law. I ask that you do not allow it to pass as there’s clearly a lot of work to do. Hiy hiy. Thank you.
The Chair: Thank you, grand chief.
Mel Grandjamb, Chief, Fort McKay First Nation: Good morning, ladies and gentlemen of the Standing Senate Committee on Aboriginal Peoples. My name is Mel Grandjamb, and I’m the elected chief of the Fort McKay First Nation.
I would like to thank Senator Dennis Patterson for arranging my appearance today to speak to you about Bill C-15 and the United Nations Declaration on the Rights of Indigenous Peoples.
Fort McKay is a Treaty 8 First Nation. Our hamlet is located on the banks of the Athabasca River in northeastern Alberta, 60 kilometres north of Fort McMurray. We are surrounded on three sides by oil sands developments, and Alberta has allocated 70% of our traditional territory to subsurface leases.
Fort McKay works closely with the oil sands industry and has benefited from that association. However, our good economic fortune cannot come at the expense of treaty rights. In 2016, an expert panel reviewing the land-use plan that helps guide development decisions said that Fort McKay is the most affected by the oil sands development. More importantly, the panel noted that if development proceeded at the same pace, it would result in my members being unable to exercise their treaty rights on their traditional territory.
You can see we have had experience with consent issues. Many First Nations and First Nation advocates have objected to the process that the federal government used to develop Bill C-15. Fort McKay agrees with these objections. Canada has not engaged rights holders and, unfortunately, it rarely does. However, there are other factors beyond process that must also be considered whenever the Crown engages in activity that impacts our inherent treaty and constitutional rights.
There has been much debate about free, prior and informed consent that demonstrates why Bill C-15 is a political statement and a distraction. If consent is coerced, sought after the fact or based upon withheld information, it’s not consent. First Nations already have consent rights, as described in the United Nations declaration, but they are far too often ignored. Our lawyer has said that you cannot negotiate treaty rights except to negotiate them away. Treaty rights and the honour of the Crown are the foundation of our relationship with Canada. Canada is obligated to defend both.
Some of you already know about our 20-year battle to protect Moose Lake Reserve so they can support my members’ exercise of treaty rights on our traditional lands. This is a first in Alberta and may be a first in Canada: a landmark decision that the Alberta court had failed to reconcile treaty rights with development decisions. It also said Alberta failed to uphold the honour of the Crown — the honour of the Crown. The concurring judge said the Crown is obligated to protect treaty rights before infringement and that Alberta had failed to consider the impact of cumulative effects on those treaty rights. The judgment effectively says that the Crown must do things differently if it wants to achieve reconciliation.
Our treaty rights also include rights to education and health care. First Nations are chronically underfunded or have insufficient access or too often distant services to exercise rights, whether it be education, adequate health care or especially for our children or safe, secure drinking water. Between 2018 and 2021, Fort McKay spent $1.6 million topping off federal post-secondary education funding to ensure our young adults were prepared to go into the workforce. We are forced to top off every social program just to ensure members have the same access to the fundamental rights of Canadians. All First Nations face this deficit and must face greater hardship than Fort McKay.
All the evidence suggests the government plans to pass Bill C-15 and do so quickly, but the bill means nothing without the action plan, and we know nothing about it. Show us a draft, an example, an approach. Show us something that might ease our suspicion. If government cannot do this, then it has been negligent. It’s unreasonable to deny a test drive of a car or do a home inspection, yet we are expected, without consultation, to accept this bill and its plan.
Though it has been a distraction, this debate has value. Politicians and Canadians cannot be reminded too often that treaty promises have yet to be fulfilled. However, you should be working to fulfill those promises with or without Bill C-15.
I thank you for your time today and look forward to any questions you may have.
The Chair: Thank you very much, chief.
Douglas Beaverbones, Chief, O’Chiese First Nation: Good morning. I’d like to thank the Senate for inviting us to attend the hearing. I’d also like to acknowledge Grand Chief Okimaw and Chief Grandjamb.
The elders are always telling me “speak your language,” and that’s what I’ll be doing. What I’m going to be saying is written on paper and was sent to the Senate.
[Indigenous language spoken — written translation follows]
Ahneen. I am the Chief of the O’Chiese First Nation Band in Treaty No. 6 territory; my title has been passed down through the generations of our treaty signers.
I represent a tribe of Chippewa Anishinaabe-speaking peoples and we live in the foothills of the Rocky Mountains.
This land is known as Turtle Island, and we lived throughout the territories. We were here first before Canada and Province of Alberta. You need to be reminded of this.
We have made a formal submission to your committee and my speaking notes will reflect the concerns we have about C-15.
Treaty trumps your government legislations and policies. The Queen’s delegate, the Government of Canada, is not acting with the honour of the Crown.
The symbolism of the C-15 legislation does not provide us with the assurance that the rights and entitlements inherent in the treaty relationship will be fully recognized.
Treaty 6 and its adhesion of our nation currently are not in any Canadian legislation. This is a deep concern that the declaration will do nothing but help the federal and provincial governments to break our treaty rights. We do not believe in your legislative system, as it has not respected our treaty rights, education and child welfare by legislating them, and you did not involve our collective people’s consent.
Will C-15 change this? The discussions in Alberta regarding provincial Bill 1, the Critical Infrastructure Defense Act, generational health care changes, coal mining and the selling of Crown lands are just some examples where the Government of Alberta acts without asking us for our input as rights holders or understanding the impact of these changes to our way of life, as promised under the treaty.
All the while our people do have rights under Treaty No. 6, and to this day they are unrecognized. This is unfinished business. So, I ask you parliamentarians, how will C-15 change this situation?
The unfinished business requires good faith and honour of the Crown. Bill C-15 will create yet more tables, more process, and even more distance from the Crown and our people. This means it will be meaningless at the treaty people grassroots level.
I strongly suggest to you that the only way to make the true discussion move between us, here in O’Chiese and the Crown, will be to fully recognize Treaty No. 6 in any action going forward for Canada must recognize that which is already signed.
Canada must understand that the Assembly of First Nations is not a treaty rights holder. The people in my nation are. Free, prior and informed consent from them is the UNDRIP standard, not Perry Bellegarde. No one has asked my people for their free, prior and informed consent for the proposed legislation.
Finally, C-15 was announced and is being moved during a worldwide pandemic. The rights of our First Nations continue to be negatively impacted by decisions and policies from governments. We continue to feel the impact of assimilation and colonization upon our lands, air, water, resources, health and families. We, as Indigenous rights holders, will continue to assert the need for respect and equality through the voices of our ancestors and generations to come by lifting our pipe.
First, I will tell you we are asserting our treaty, which is strengthened by the pipe ceremony. I must remind you that O’Chiese First Nation always speaks for itself on matters such as Bill C-15, the proposed act regarding the United Nations Declaration on the Rights of Indigenous Peoples. When the sacred pipe was lifted, it affirmed the friendship, partnership and the terms of the agreement between the Creator, Crown and First Nations, as long as the sun shines, the river flows and grass grows. Where in your Bill C-15 are these words?
The rights and responsibilities given to us by the Creator cannot be altered or taken away by another nation. On behalf of my people, this Bill C-15 legislation cannot and should not proceed.
I’d like to thank you for listening. O’Chiese does not support and hopes Bill C-15 does not proceed. As O’Chiese members, we will continue to fight for what is in the treaties. We will still protect our treaties. Thank you very much.
The Chair: Thank you very much, chief.
We will now open the meeting for questions, beginning with the sponsor of the bill, Senator LaBoucane-Benson.
Senator LaBoucane-Benson: I was born and raised and live on Treaty 6 territory. I want to acknowledge Okimaw Watchmaker today and thank him for his testimony and for being here. It’s important to hear from treaty rights holders.
My question is for Chief Grandjamb. You brought up the action plan, and I’m grateful for that. I hear what you’re saying about not having a draft, an understanding or an outline of what that looks like. I’ve been told by government officials that the government plans to consult first, put out a first draft and then have a discussion around it. So the first part of that action plan, phase one, will be consultation. What would that look like? How should the government respectfully consult treaty rights holders in the development of that first draft of the action plan? What would that look like to you?
Mr. Grandjamb: We’ve had a lot of meetings over the last while analyzing and discussing the consultation. It’s very important to recognize that there are 11 treaties, 1 to 11. Those are the rights holders. It’s very prudent and important that the dialogue starts with the treaties rights holders.
This process has failed. It’s like a manipulated process where you go and selectively pick who you’re going to consult with. You’re hearing across Canada that the chiefs who represent the nations have not been consulted adequately. They’re going through the assembly who do not hold treaty, so it’s very imperative that you focus on the treaty rights holders.
Senator LaBoucane-Benson: Thank you.
I wonder if Okimaw Watchmaker might answer the same question. What would respectful consultation with treaty rights holders look like to you?
Mr. Watchmaker: Thank you for the question.
First and foremost, as treaties rights holders, treaty people, our rights are confirmed through the Royal Proclamation of 1763, and that has been a reminder first and foremost. I also believe Canada has to act honourably to uphold their duties and obligations under the treaty.
Just to reference our case in the courts, in the Mikisew Cree First Nation decision, it was held that the Crown has a duty to consult, mitigate, accommodate and conducting —
The Chair: I’m sorry, grand chief, but your time is expired.
Senator Patterson: Thank you to all the witnesses for your very compelling testimony this morning.
My question is for Grand Chief Watchmaker. Chief, the Yellowhead Institute gave a definition of FPIC that I thought was excellent and high level. They defined it as:
FREE: Consent given voluntarily and without coercion, intimidation or manipulation. A process that is self-directed by the community from whom consent is being sought, unencumbered by coercion, expectations, or timelines that are externally imposed.
PRIOR: Consent is sought sufficiently in advance of any authorization or commencement of activities.
INFORMED: The nature of the engagement and type of information that should be provided prior to seeking consent and also as part of the ongoing consent process.
CONSENT: Collective decision made by the rights holders and reached through the customary decision-making processes of the communities.
I would like to be very clear. Do you feel that the Government of Canada met any of these requirements in FPIC with regard to the development and tabling of Bill C-15? Thank you.
Mr. Watchmaker: Thank you for that question, Senator Patterson.
My answer would be no, I think this bill does not create a veto. What you mentioned — free, prior and informed consent — has been recognized — I’ll say it again — by the Royal Proclamation of 1763. I believe when you say collective rights, I think that it is not legally obligating when it’s put under the preamble.
In terms of the human rights, all it stipulates is human rights, but from the treaty rights holder, First Nations holding collective rights is something that’s over and above just human rights. So it doesn’t really capture that.
I believe this is very important: free, prior and informed consent. Obviously it was not fully captured in our view of this bill. Even if you were to follow that process, it wasn’t really followed in this whole engagement of Bill C-15. So you say it —
The Chair: I’m sorry, grand chief, but your time expired once again.
Senator Stewart Olsen: My question is for Minister Dunn, if she’s still with us.
Ms. Dunn: I am. Thank you.
Senator Stewart Olsen: Minister Dunn, we understand from government witnesses that provinces are basically in favour of the intent and spirit of UNDRIP, but New Brunswick has signed on to one of the letters asking the federal Liberals to delay tabling the bill. It is stating that:
The delays necessary to allow for appropriate engagement with the provinces and territories, Indigenous partners in the draft Bill and to allow time for Canada to fully understand and meaningfully consider the legitimate and significant concerns that we’ve raised about the draft bill in its current form and that a hasty adoption of an ambiguous legislation could fundamentally change Confederation without the benefit of widespread and necessary national and provincial consultation and consensus. It risks undermining reconciliation but will create uncertainty and litigation and risk promoting deeper and broader divisions within our country.
Minister Dunn, Minister Lametti told the committee that provincial laws would continue to have the last word in many different situations. Is that consistent with your understanding? If not, can you please elaborate on any concerns you may have regarding respect for provincial jurisdiction?
Ms. Dunn: Thank you for the question, senator. It’s a great question.
Just from the provincial perspective, there are a number of factors that are very concerning to us. One is a lack of engagement in terms of the consultation process. I believe we had three meetings and very little dialogue with respect to this particular issue.
Also, we’re not even sure how much dialogue has occurred with respect to First Nations. What we’re hearing anecdotally is that some of the First Nations are saying there hasn’t been much engagement with the elected chiefs and council and not much discussion with respect to what is happening at a community level.
From a provincial perspective, we’re building that relationship with First Nations, but we’re building it through dialogue to make sure we understand what really matters to these communities. What are their challenges and priorities? We don’t feel in this particular case that there has been enough of that done.
Also, it’s concerning to us that we think, from a provincial perspective, that we are much more in tune in terms of having those discussions with the communities here, the First Nations communities, listening to their needs and making sure that we enact whatever those requirements are. We don’t see this Bill C-15 as enlightening that process. Actually, we think it’s so vague and diluted that it’s going to create more questions than answers and potentially more opportunities for litigation as well.
Senator Stewart Olsen: Thank you, minister.
Senator MacDonald: I want to thank the minister and chiefs for being with us.
My question is for Chief Beaverbones. In a brief submitted to the House of Commons committee on March 10, 2021, you stated clearly that your community rejects this bill, does not give consent and that the government has used the national organization, the Assembly of First Nations, and territorial and provincial organizations to manufacture the consent to proceed in the manner it has.
During third reading in the House, Gary Anandasangaree, the Parliamentary Secretary to the Minister of Crown-Indigenous Relations, echoed the argument that Romeo Saganash made during his appearance before the House committee. They both argued that since Mr. Saganash toured his private member’s bill across the country and we debated it in Parliament, the work is done on the bill and it should carry over to this bill and satisfy the issues around consultation that you are raising.
Could you give us your thoughts on that? If we have time, I would like the other chiefs to comment on that as well. Thank you.
Mr. Beaverbones: Thank you.
I would just like to say that with the consultation, we were never approached or we were never given time to get your people to come and visit O’Chiese to tell us what this Bill C-15 is. But moving forward, if you guys would have come down and explained what this Bill C-15 was to my people, that would have made my people understand what this Bill C-15 is. But reading your bill there, my leaders have said it doesn’t fit for us. When we approached our elders, they said, “No, do not go there. This Bill C-15 that is being implemented is not good for our people.”
I don’t know if it was done during the COVID pandemic or how it was being presented. We can always blame COVID for what’s being done behind doors, what’s being approved or all the agreements that are being made, but Bill C-15 is still not a good way to treat our people. It’s like assimilation; it’s the same thing. I believe Bill C-15 should not go forward. I would just like to say that our chiefs will never support this Bill C-15. Thank you.
Senator MacDonald: Thank you.
Senator Francis: This question is for Minister Dunn —
Mr. Grandjamb: Excuse me, sir. You asked about comments from other chiefs regarding the previous question, or was that —
The Chair: I’m sorry, chief. The time had expired for the senator.
Mr. Grandjamb: Very good. I had a comment to make, but no problem. Thank you.
Senator Francis: This question is for Minister Dunn. I will not comment on your opening statement, which I find misleading and offensive as a former chief and Indigenous person, but I will ask you this: This bill would only impose obligations on the federal government; however, the rights in the UN declaration are not new but rather based on existing human rights instruments that states have an obligation to honour to remain in good international standing. That means that our federal and provincial governments cannot simply pick and choose when to respect them on their own political agendas. The application of UNDRIP in Canadian law is already legal, and the political reality is being generated by federal and provincial legislatures and courts. Are these facts that your government disputes?
Ms. Dunn: Thank you for the question. I appreciate it.
There was no intention to cause any sort of hurt feelings with respect to my opening statements. Our concern, specifically, is to make sure that whatever we commit to as a province is what we can do. Currently, the concern we have with respect to the proposed legislation is that it is very vague and diluted. It doesn’t explicitly state what those additional rights are. We’re concerned about what we commit to. If we commit to doing something with respect to this legislation, we don’t want to be in a situation where we come back and say, “We’re sorry. We weren’t able to do actually do this.”
We need the appropriate time to sit down, make sure we actually understand the provisions of the legislation and make sure we understand across government how we can actually utilize this legislation to fit the province as well as First Nations. Also, whatever we commit to, we want to make sure we are actually able to achieve it. That is our concern. Thank you.
Senator Francis: I have a supplementary, if I have time.
The Chair: You do.
Senator Francis: Minister, what is your relationship with the First Nations in New Brunswick with regard to this? Have you had ongoing and meaningful discussions?
Ms. Dunn: Thank you again for the question.
I understand from my staff that they have actually had minimal meetings with respect to this particular issue. I believe there was one in September or October — maybe two or three meetings. There’s been very little engagement. There was a discussion with respect to the assurance to engage with First Nations. We’re not completely sure how much engagement has occurred on that level either.
So our concern is that we’re going through a process in the Province of New Brunswick currently to engage with First Nations, making sure we understand what their issues and concerns are. That’s the road we’re going down, so we want to make sure that if there’s any legislation being passed that will affect the Province of New Brunswick, that there is full engagement with First Nations, and also that the province is at the table so that we can make commitments, and make them wholeheartedly, knowing we can actually fulfill them.
Senator Hartling: Thank you very much to the witnesses today. What you’re presenting is very interesting.
My question is for Minister Dunn. I’m from New Brunswick. Congratulations on the many portfolios you’re holding. You have lots to do. It seems from your past that you have done a lot of work on inclusion, diversity, and engaging with Indigenous women and marginalized groups.
My question might build upon what Senator Francis said. I know in New Brunswick in the last year that a lot of issues and concerns have been raised by Indigenous people about going forward to build trust. We now have UNDRIP on top of that. What are some of the plans and things that will happen? I know you mentioned a few things, but what else is planned to build that trust and engage Indigenous people in our province so that, going forward, we can make it more inclusive? What is the government planning to do? Also, what conversations have you had with the federal government around some of these issues?
Ms. Dunn: Thank you, senator, for the question. Thank you also for your very kind words. I appreciate them very much.
From a provincial perspective, there is a lot of really good work going on in the province across numerous departments. If you look at the regulations with respect to the TRC report, you will see that 27 of those 31 provincial obligations have been worked on extensively across entire departments. We’re quite proud of that work, to the point where we presented a report in the legislature two weeks ago with respect to the activity ongoing in the Province of New Brunswick.
In my previous career, I did expensive work with First Nations throughout Canada. One of the things that’s so important and vital is that engagement is really at a grassroots level. It’s so important that we have that engagement. One of the things we’re looking at in the Province of New Brunswick in terms of moving that needle forward, in the light of the fact you’re hearing lots of activities, is having that engagement with individual First Nations. Senator, I can tell you that we started that process. We’re having them come to the table and we’re listening to them. It’s a listening process right now to make sure, as a new minister, that I understand what’s important to their community. What are the opportunities? What are the concerns they have?
In terms of diversity and inclusion, unless we have those discussions at the grassroots level, I think we’re missing the point. That is the job we really need to focus on here and that is what this government is currently doing. We’re bringing First Nations to the table, and we’re spending time and listening to them in terms of what their concerns are. To me, there is nothing better when it comes to diversity and inclusion than to make sure you’re listening to the people who understand this, and that has to come from the communities, not from others.
Senator Hartling: Thank you.
Senator Pate: Thank you to the witnesses.
I would like to pick up from what Senator LaBoucane-Benson, the sponsor of the bill, asked you, and this is also for the chiefs: What kind of consultation process would be advisable? I know you spoke a bit about this, but I wanted to provide you an opportunity to expand on what kind of consultation process needs to be undertaken. What would you expect from the government if this bill does pass? Let’s start with Chief Watchmaker and then anyone else who would like to speak as well. Thank you.
Mr. Watchmaker: Honestly, the consultation on this bill has not been honourable. There has been no discussion or engagement process, no draft submitted. The first time we heard that there was legislation was in December 2020, during the pandemic. We don’t consider a process with AFN as a valid shortcut to undermine our treaty rights. Also, Canada has a coloured view of what consultation is, we believe. Our treaty relationship is severely strained by this process, which brings dishonour to the Crown, and meaningful dialogue did not occur on this bill. We were not even aware of it until it hit the floor of Parliament. To us, that is not consultation.
Mr. Grandjamb: Thank you for that. I totally agree with Chief Watchmaker regarding the process.
I want to go back quickly to what the province said about the process for Bill C-15. For Fort McKay, this is easy. The fundamental flaw in Canada happened in 1930 in the natural resources transfer act. That is what crippled the country. Responsibilities were transferred from the feds to the province without treaty rights.
This is what Fort McKay will be doing. We’ve pushed the province to address the honour of the Crown, and Fort McKay will continue to do so in the courts. It’s very unfair how the federal government can provide transfer payments to the province but not to the nations.
Of course, you’re going to see the province dispute or repute whether this is right. The fact is, there are fundamental and fiduciary responsibilities from the feds to be transferred to the province, and thus we would not require Bill C-15 because we would honour the Crown and implement the treaties as agreed to.
Senator Anderson: [Indigenous language spoken].
Thank you this morning for your words and sharing in your language. I appreciated hearing from you.
My question is for Chief Mel Grandjamb. I understand that industry makes decisions around the idea of certainty, and we have heard concerns about the ways in which the concept of free, prior and informed consent might increase uncertainty among industry stakeholders. The relationship between Indigenous rights holders and the Crown, however, is predicated on the honour. We are never provided any more certainty than the notion of the honour of the Crown. Indigenous people have decades of evidence that point toward Canada’s disregard for that honour.
What do you think we can do, as Canadians, to collectively move toward reconciliation when industry requires certainty for business decisions and Indigenous people must rely on honour for decisions on self-government and self-determination?
Mr. Grandjamb: Wow, there are a lot of good questions there.
With Fort McKay, I can relate to how we do things up here. Fort McKay had to do fast work in industrial development. We had the treaty and no help from the province or the feds. Fort McKay has had to exert its strength in the courts to enact and push these industry plans to create LTSA agreements for the community, long-term sustainability agreements that will benefit the community in the long run. These were developed and put in place for our community in order to give us the sovereignty to create our own self-government.
There are fundamental processes omitted when it comes time for communities to work with resource development. Right now, the big concern is we do this with First Nations or other groups to veto projects. From our perspective, Fort McKay has always garnered that we will develop responsibly, and that’s what we’ve done. The Moose Lake Plan that we pushed the province to accept addresses responsible resource development with the fact that you can still exercise treaty rights.
I hope that kind of answers some of your questions.
Senator Anderson: [Indigenous language spoken].
Senator LaBoucane-Benson: I’m going to give my question to the critic, as there is only one question left and he said he had one. Thank you.
Senator Patterson: That’s much appreciated, Senator LaBoucane-Benson.
Grand Chief Watchmaker, I would like to follow up on your comment about clear advice that has been given to this committee, beginning at our first meeting with AFN Grand Chief Perry Bellegarde, that we must not accept any amendments. My concern is that this is an abdication of our duty as parliamentarians. I would like to ask, do you believe this bill can be amended to be better, or do you believe that, due to the lack of consultation, we should not pass this bill and start over with respectful engagement from the very beginning?
I would like to go to Chief Beaverbones as well, if he’s willing to answer that question. Thank you.
Mr. Watchmaker: Thank you, senator, for that question.
Certainly, I believe the government cannot legislate their duties and obligations through a national action plan that fails to adequately consult with impacted First Nations and continue to review would perpetuate infringement anyway.
I believe the Senate must also look into its own history regarding how difficult it is to amend a bill after it has already been passed. Senators are well aware of how difficult it is to amend legislation after the fact, looking at, for example, Bill S-3. It took three extensions to allow it to happen. There is clear evidence to show the difficulty of amendments after a bill passes.
We would clearly support the bill not passing and having proper engagement with nations, going back to the grassroots, having those engagements properly and then moving forward.
Senator Patterson: Thank you. Chief Beaverbones, if there’s time.
Mr. Beaverbones: Good morning again. I would just like to say that with the AFN, we wrote a letter to them, maybe two or three letters, that they do not speak for O’Chiese. I tried to invite Mr. Bellegarde to come and meet our people in O’Chiese a year or two ago, and I still haven’t gotten a response.
To whatever is being passed, we don’t get consulted. That’s what I’m saying. We were never consulted on the agreements that the government made, so it’s a big issue for us.
The Chair: I’m sorry, chief, but our time has expired, not only for this question but also for this panel.
I wish to thank our witnesses for being with us today. I wish to thank Minister Dunn, Grand Chief Watchmaker, Chief Grandjamb, Mr. Evans, Mr. Johnson, Chief Beaverbones, Ms. Carpentier and Ms. Large.
I wish to welcome our next panel of witnesses: Dr. Mauro Barelli, Senior Lecturer, The City Law School, University of London; Mr. Dwight Newman; and Mr. Romeo Saganash.
Dr. Barelli, Mr. Newman and Mr. Saganash will provide opening remarks of approximately six minutes, which will be followed by a question-and-answer session with senators for approximately three minutes per senator. The first question 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, they are asked to use the raise hand feature on Zoom to signal this to the clerk. They will be acknowledged in the Zoom chat. Please note that committee members will be given priority on the list of questioners.
Any written follow-ups to questions should be submitted to the committee clerk no later than May 30, 2021.
Committee staff will advise me via text when there are 10 seconds remaining for the speaking time of both witnesses’ introductory remarks and senators’ question-and-answer time. I will do a 10-second visual countdown with my hands, and when I reach zero, I will let you know that your time has expired.
I wish now to invite Dr. Barelli to give us his opening remarks.
Dr. Mauro Barelli, University of London, as an individual: Good morning, senators, and thank you very much. I would like to begin my talk by thanking the chair and the members of the committee for inviting me here today.
As an academic specializing in the rights of Indigenous peoples in international law, over the years I had the opportunity to examine various aspects of the UN Declaration on the Rights of Indigenous Peoples that are relevant in the context of the current discussions on Bill C-15. In particular, my statement today will focus on two of those issues: first, the purposes of Bill C-15 and its relationship with UNDRIP; and second, free, prior and informed consent, or FPIC.
The first purpose of Bill C-15 is to affirm the declaration as a universal international human rights instrument with application in Canadian law. From an international law perspective, this is a straightforward and uncontroversial statement. UNDRIP is undoubtedly an international human rights instrument. It is, in fact, an international legal instrument concerning the human rights of Indigenous peoples. UNDRIP is not a treaty, and nothing in Bill C-15 suggests otherwise.
The fact that UNDRIP was adopted by means of a UN General Assembly resolution means that it is not in itself legally binding as an international treaty would be. However, nothing prevents an international legal instrument such as UNDRIP from having application in domestic legal systems. This is especially so in light of the high degree of authoritativeness and legitimacy that UNDRIP has acquired at the international level. Thus, national courts, as well as regional human rights courts, can use, and in fact have used, UNDRIP to interpret, clarify or expand existing laws. At the same time, the provisions of a declaration such as UNDRIP can inform, either directly or indirectly, legislative and policy developments.
The second purpose of Bill C-15 is to provide a framework for the Government of Canada’s implementation of the declaration. In this sense, Bill C-15 represents the beginning of a larger and very important process aimed at achieving, in line with Article 38 of UNDRIP, the ends of the declaration.
When we talk about UNDRIP and consider appropriate steps to achieve its objectives, it is also very important to remember that, as affirmed by Article 43, the rights recognized in UNDRIP constitute the minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world. We should, therefore, never lose sight of the human dimension of the current discussions.
I will now make a few points with regard to free, prior and informed consent. Again, I will make this point from an international law perspective.
The first point is that international and regional human rights bodies have all endorsed FPIC unreservedly. At the international level, take, for example, the practice of UN human rights treaty bodies such as the Human Rights Committee and the Committee on the Elimination of Racial Discrimination. At the regional level, consider the jurisprudence of proper tribunals such as the Inter-American Court of Human Rights and the African Court on Human and Peoples’ Rights. The widespread recognition of FPIC among all these human rights bodies indicates that today FPIC represents a key legal standard that states must embrace in order to comply with their international obligations towards Indigenous peoples.
The next point I would like to make is that neither the declaration nor any of the international or regional human rights bodies that I’ve just mentioned have defined FPIC as entailing a right to veto. Instead, they’ve all subscribed to the view that, first, consultations should always be conducted in good faith and be aimed at reaching consent. Second, in the specific context of projects affecting Indigenous peoples’ lands, the scale of a development project and the human and social impact of the activity in question are the main criteria that will determine the strength of the objective of achieving consent.
The Constitutional Court of Colombia has eloquently explained why it would be inappropriate to juxtapose the concept of veto with FPIC. The court noted:
Veto creates the impression of an arbitrary barrier, which does not require reasons to impose itself against other points of view and ways of action . . . .
Instead, the court continued, the process of consultation should be:
. . . conceived as a dialogue in good faith, among equals, and aimed to reach agreements that take into account the environmental, social and economic impacts of a measure, in an attempt to reconcile different conceptions of development.
Finally, it is important to consider the relationship between FPIC and some of the most important rights of Indigenous peoples affirmed in UNDRIP. In particular, the right of Indigenous peoples to self-determination, which includes their rights to freely pursue their economic, social and cultural development, cannot operate properly if states’ interests systematically prevail over those of Indigenous peoples. It follows that a genuine endorsement of the values underpinning FPIC is necessary to signal a concrete commitment to fully respect the fundamental rights of Indigenous peoples.
The Chair: Thank you, Dr. Barelli.
Dwight Newman, Professor of Law & Canada Research Chair in Indigenous Rights, University of Saskatchewan, as an individual: Good morning. It’s an honour to appear before this Senate committee today on the same panel with a distinguished international Indigenous rights law academic like Dr. Barelli and someone who has been such an important legal and political advocate for Indigenous rights in this country as Mr. Saganash, who will go down in history for his work, I’m sure.
I want to acknowledge that I’m speaking from Treaty 6 Territory and the homeland of the Métis.
My name is Dwight Newman. I’ve spoken before this committee on prior occasions, but for those of you who have shifted between committees, I work as a law professor at the University of Saskatchewan, and I’ve done a lot of my writing on issues related to Indigenous rights law, both in Canada and internationally.
In speaking before this committee, I’m speaking as an individual. As always before a parliamentary committee, I am trying to provide a perspective from a legal background with the aim of supporting Parliament in understanding well what it is adopting and what options it might have in terms of adjusting that if it were to seek to adjust it or so forth.
In the case of Bill C-15, we’re obviously speaking of a matter of enormous symbolic significance in terms of Canada’s ongoing commitment to Indigenous rights as part of its ongoing work on human rights more generally.
At the same time, in speaking about a bill, we are speaking about something that will potentially become something with statutory force in Canadian law, and it’s important to be aware of the potential consequences of adopting a statute in a particular form, even where those potential consequences are different than those intended by the bill or different than the purposes it might have.
Everyone in this committee is concerned with how to improve the position of Indigenous people in Canada. I presume everyone appearing before the committee does so in that spirit as well. A key thing to think about on this bill is exactly how it does that and how it does so relative to other ways of pursuing the same goal, through a similar bill or other options.
Obviously, as I’ve said, the bill marks an important symbolic recognition of Indigenous rights. Beyond that, some sections of the bill may offer encouragement to the courts to make use of the United Nations Declaration on the Rights of Indigenous Peoples, or what I’ll refer to as UNDRIP, in their interpretation in different contexts.
I’ll highlight that this bill is different than the predecessor Bill C-262 in a significant way on that part, because the reference to recognizing UNDRIP in the application of Canadian law is not in an operative clause of the bill but is now in a purpose clause of the bill, as well as there being reference in the preamble. That actually removes one of the major ambiguities that I spoke of in the context of Bill C-262. I think this bill offers that encouragement to the courts without having some of the risks that Bill C-262 had in terms of that being immediately part of statutory law. As Dr. Barelli has said, it’s proper that there be recognition of UNDRIP as an international human rights instrument. There’s no question about that, but this way of doing it, I think, has some positive features.
The other parts of the bill have sections concerned with the development of an action plan for the implementation of UNDRIP and committing the Canadian government to all necessary measures to ensure the consistency of Canadian law with UNDRIP. I’ll say some quick things about those pieces to the bill. I see time is running out fast.
First of all, there would be no legal barriers to the government working on Indigenous issues without this bill in place or in advance of the action plan, and no law has stopped anyone from developing an action plan based on UNDRIP before this bill was in place. I hope this bill won’t delay things by setting out a three-year timeline on that in terms of action on important Indigenous issues.
The next point I’ll make, though, is that there are highly divergent expectations on what the bill will mean from day one. I think there it’s important to think about the experience in British Columbia with a very similar bill, B.C.’s DRIPA legislation, or Declaration on the Rights of Indigenous Peoples Act of 2019. There were many assurances that that was just setting in place an action plan. What has happened is that there has been a meaningful amount of use of that bill already in attempts at litigation, suggesting that the bill already constrains the government in some way even prior to the adoption of that action plan. The presence of those kinds of divergent perceptions is a challenge, and it’s something to consider, whether there’s a way to avoid some of those effects.
The other thing I’ll highlight is that the way the bill is structured now sets the stage for a possible challenge to the action plan down the road if there ends up being disagreements about it. There would be possibilities of some taking that to a judicial review. I don’t know that that’s desirable for reconciliation. Again, I think there could be more clarity added to the bill to limit those effects.
I’ll stop there because I know my time is essentially expiring. I did send some comments to the House committee on other things that could be sought as legal clarifications, but with those preliminary comments, I’ll happily answer questions later on.
The Chair: Thank you, Mr. Newman.
Romeo Saganash, as an individual: [Indigenous language spoken] Thank you, Mr. Chair.
I wanted to outline the fact in Cree that it seems somewhat odd for me, and very peculiar, to be before this very institution that was responsible for the defeat of my private member’s bill, Bill C-262, and, to be fair, a handful of your colleagues. However, Mr. Chair, I do want to make clear to you and the honourable members of this committee that I hold no animosity and that I have moved on from that unfortunate event. But here we are again.
A couple of points on UNDRIP: I think it’s worth knowing that the UN Declaration on the Rights of Indigenous Peoples is the longest-discussed and negotiated universal human rights instrument in the history of the United Nations. It took us more than two decades to negotiate this instrument. To date, the UN declaration has been reaffirmed by the General Assembly of the United Nations at least 10 times by consensus — that means without a vote. That means also that no state in the world presently opposes the UN Declaration on the Rights of Indigenous Peoples.
In fact, last December, the UN General Assembly highlighted that the declaration
. . . has positively influenced the drafting of several constitutions and statutes at the national and local levels and contributed to the progressive development of international and national legal frameworks and policies . . .
I’m pleased to see that Bill C-15 is based on Bill C-262. That was the commitment by the federal government, and it goes, I think, even further than Bill C-262.
A couple of words on Bill C-15: In my eight and a half years as a legislator, Mr. Chair, in the other place, I’ve had to review and consider some 1,463 pieces of legislation. Some were lengthy pieces of legislation, some others were very lengthy, but some are pretty innocuous — simple, straightforward — and Bill C-15 falls in that latter category. One simply needs to refer first to the purposes of the act as provided for in clauses 4(a) and 4(b), and, of course, the process of developing the action plan in consultation and cooperation with Indigenous peoples. There was a three-year period provided for that. It is now down to two.
I believe it is important to fully appreciate clause 4(a). In fact, the tribunals have referenced the UN declaration many times over the years, even before this bill was introduced. In fact, in Canadian legal tradition, international human rights standards have real weight in domestic law. Canadian courts and tribunals take Canada’s commitments seriously and regularly use international human rights norms to interpret and apply domestic laws. This is what Bill C-15 means and explicitly states when it affirms the UN declaration as a universal, international human rights instrument with application in Canadian law. The bill will not turn the declaration into Canadian law. This is about acknowledging the reality that the declaration is already part of Canada’s legal landscape.
One of the key provisions of Bill C-15 is the requirement that the federal government work proactively with Indigenous peoples to identify laws and policies that need to be changed in order to uphold Canada’s human rights obligations.
Finally, I think it is important to recognize that Bill C-15 will set out an international precedent in terms of implementation of the UN Declaration on the Rights of Indigenous Peoples. The positive benefits will not be limited to Indigenous peoples in Canada but will serve to provide a positive example for states in different parts of the world.
As someone who participated — and I will conclude on that, Mr. Chair — in the negotiation of the UN declaration, as a former member of Parliament, as the author of the private member’s bill on which Bill C-15 is based and as a rights holder as well, it may be no surprise that I strongly support this initiative. I don’t expect everyone to agree. However, I do believe that there is an obligation to get the facts right when talking about the bill and the current state of Canadian law.
Thank you, Mr. Chair.
The Chair: Thank you, Mr. Saganash.
I’d like to open the floor for questions, beginning with the sponsor of the bill, Senator LaBoucane-Benson.
Senator LaBoucane-Benson: My question is for Dr. Barelli. You’ve provided one of the clearest, most evidence-based definitions of FPIC internationally. I wonder if you can bring this home for us. Have you studied Canadian jurisprudence on the duty to consult? How does that compare with the international definitions of FPIC?
Dr. Barelli: Senator, thank you very much for the question, which is, of course, a very important one. It is connected directly to some of the most difficult issues you have been trying to discuss in this committee.
I think that free, prior and informed consent is a principle that inevitably comes with a degree of flexibility. That’s always been my position with respect to FPIC. When I say “my position,” by the way, I’ve always tried to capture the position endorsed within international law. I’ve always been looking at this issue not from a domestic or Canadian perspective but from the perspective of international law. In that respect, free, prior and informed consent is a fundamental principle that reinforces the right of Indigenous peoples to participate in decision-making processes affecting them. It’s a fundamental component of their right to self-determination.
It is fundamental to guarantee the recognition of the rights that I just mentioned. This can only happen if consultation is not just an end in itself. It’s one thing to enter into consultations knowing that there is no possibility of affecting the outcome of these consultations; it’s quite another thing to know that you will have a chance to affect the outcome of the consultation. That’s what FPIC, to begin with, clearly establishes. There has to be a fair dialogue conducted in good faith by both parties. Indigenous peoples do have and should have a chance to affect the outcome — to give or withhold their consent.
However, this does not happen in absolute terms. You’ve already heard this many times here as well. I’ve been following the discussions. Inevitably, this is a principle that must be contextualized. This is what all the international and regional human rights bodies that I mentioned in my statement have said. It’s not me saying it. There is a unanimous view on this. The free, prior and informed consent must be contextualized in the sense that, if we talk about development projects affecting Indigenous peoples’ lands, then we need to look at what this project is about. What is the scale and magnitude of the project, and what will be the impact of the project on the human and social human rights —
The Chair: Thank you, Dr. Barelli.
I’d like to turn to the critic of the bill, Senator Patterson.
Senator Patterson: Thank you to the witnesses.
It’s good to see you again, Mr. Saganash. When you were an MP, you were very clear that anything advanced by the federal government requires appropriate consultation. In an October 12, 2018, interview with CBC, you said of the government:
They use words like “engagement,” “dialogue” but not necessarily “consultation” from a constitutional standpoint.
Mr. Saganash, I’d like to ask you a question as a rights holder. We just heard from rights holders this morning — they were elected chiefs — and we’ve heard from rights holders such as Treaty 6, 7 and 8, AIAI in Ontario, MKO in Manitoba and so on that they either reject this bill outright or they have outlined the minimum standards required to support this bill. We’ve heard those standards have not been met. We’ve also heard there is an expectation of consultation for any Crown-initiated legislation before it is tabled as per the duty to consult contained inherent in section 35. My question is this: Would you agree that the opinions and any concerns of rights holders deserve to be brought to the fore on this piece of government legislation? Thank you.
Mr. Saganash: Thank you, Dennis, for that question. It’s good to see you as well.
First of all, I understand the concerns that have been expressed about Bill C-15 and the lack or not enough consultation that some have expressed. I’m not the one to judge whether or not it was sufficient. I think all rights holders have a right to challenge the process that was applied to the development of Bill C-15 and to challenge that in court. It is their absolute right to do that.
I just took a look at what Resolution No. 86/2019 provided. This resolution was adopted by the chiefs of the AFN providing the mandate for the AFN to negotiate federal legislation using Bill C-262 as the floor. I think that resolution was adopted by consensus, and I take it from that perspective. If others feel the process was not sufficient, then I would think it’s their absolute right to challenge the process.
Senator Stewart Olsen: Thank you to our witnesses.
Professor Newman, you’ve spoken in your presentations about the legal ambiguity and uncertainty arising from the use of the term “application in Canadian law.” You also argue that a purpose clause may be thought not to have the same legal effect as an operative clause. Can you please expand on those comments and advise as to whether or not you see any potential amendments that could avoid the type of legal uncertainty that you’ve raised?
Mr. Newman: I’ll say there is less legal uncertainty arising from Bill C-15 than what would have arisen from Bill C-262. In Bill C-262, the clause concerning the application in Canadian law was within a clause that had statutory effect. In this bill, the section in question refers to the application of principles from UNDRIP in Canadian law as a purpose of the bill. It doesn’t necessarily become something that has statutory force. It’s something that more commonly would be used to interpret the bill, for example.
However, there are people who have presented a different view on that point, and the legal adviser to the Assembly of First Nations, I think, provided a perspective that spoke as if it would have more effect. It would be clearest, if it’s not to have statutory effect, to have it in just the preamble. However, I recognize that some would see that as too much of a dilution of the principle, and there are understandable reasons some would want to see it in a purpose clause.
Senator MacDonald: I’ll direct my question to Professor Barelli.
Professor, in a 2018 publication entitled The UN Declaration on the Rights of Indigenous Peoples: A Commentary, you stated that a flexible approach to FPIC would be one that is
. . . aimed at guaranteeing the effective participation of Indigenous people in decisions affecting them and the effective protection of their fundamental rights.
I’m interested in the part about effective participation. If rights holders and traditional treaty holders are left out of the initial conversation, given limited notice, time and resources to participate, or have their feedback ignored, and are consequently rejecting the entire process and proposed legislation, are we not violating their rights as guaranteed by section 35 of the Constitution and the articles among them? Thank you.
Dr. Barelli: Thank you, senator, for the question. It is an important one.
I think what you were trying to point out in your question is the importance of guaranteeing participation from the very beginning of each process. This is, indeed, what is required — not just by FPIC, but by the right of consultation as it has been recognized and affirmed in international law.
The aim should always be to run processes that are as inclusive as possible. The goal should always be to be as inclusive as possible. I don’t know exactly how inclusive the process has been, to what extent some rights holders are mounting a challenge to the bill or how widespread it is. I note that there has been consultation with respect to previous bills on which this bill builds.
My sense is that what really matters is what comes next once the action plan starts to be drafted and when steps are taken practically to make sure that the ends of the declaration are met. At that point, it would still be possible to bring on board those voices, which, apparently, at the moment, have been left out. Then, of course, you also need to look at to what extent this is a problem or to what extent there is a lack of support among Indigenous peoples to this bill.
In 2018, Costa Rica passed a very interesting law on consultation. Before that, a consultation on consultations was run over 24 months —
The Chair: Sorry, Dr. Barelli, time has expired.
Senator Anderson: My question is for Dr. Barelli. We have heard numerous witnesses speak to the lack of consultation with rights holders, as well as the lack of faith in Canada, both historically and currently, to uphold and honour their words with actions. You spoke of “good faith among equals.” Can you explain that concept, and do you see Bill C-15 as offering an opportunity for good faith among equals?
Dr. Barelli: Thank you for the question, senator.
I personally think that taking steps to achieve the ends of the declaration would be conducive to better relationships between equals on the basis of the principle of good faith. That is my view.
It would require a significant amount of work. The declaration is made of 46 articles. It will not be an easy task, but I believe that the provisions of the declaration — the rights affirmed in the declaration, as well as the principles underpinning those provisions and those rights — are based precisely on the recognition of equality. This was, in fact, one of the most important articles affirmed in the declaration, the one establishing the principle of equality. Indigenous peoples are equal to all people. I certainly would see this as a process conducive with the aims you have mentioned.
Senator Pate: Thank you to all the witnesses.
I want to particularly thank you, Mr. Saganash, for initiating Bill C-262, which, of course, set the groundwork for Bill C-15 and effectively enabled Canada to positively shift its position and consultation processes regarding the United Nations Declaration on the Rights of Indigenous Peoples.
Regarding the UN declaration, section 35 and the coexistence of these two, when you developed Bill C-262, how did you envision the legislation, when implemented, would be protected from justified infringement under Sparrow? How can the national action plan clarify this issue given that it presupposes inherent pre-existing rights as minimum standards?
Mr. Saganash: First of all, let me contextualize the question in the sense that I always view the Constitution, our treaties, Indigenous law and international human rights law as distinct legal frameworks that mutually reinforce themselves. I think we need to make that distinction as well.
Section 35 is a stand-alone provision within the Canadian legal system, in addition to the United Nations Declaration on the Rights of Indigenous Peoples, that speaks to inherent or pre-existing rights of Indigenous peoples. That has been a discussion over the last 30 years.
It is also important to mention that we often seem to forget that many of the provisions under the UN declaration already constitute customary international law. I can point to Articles 2, 3, 7(2), 31(1), 26, 27 and 28 of the UN declaration.
The declaration also contains what we call in international law overriding norms, or peremptory norms — jus cogens in Latin. Both the international human rights covenants, Article 28, the economic and social rights covenant, and the civil and political rights covenant, Article 50, speak to the provisions of the covenant that shall extend to all parts of a federal state without any limitations or exceptions. And that’s what Bill C-15 is about, and that’s what Bill C-262 is meant to do.
The Chair: I’m sorry, Mr. Saganash, but time has expired.
Senator Francis: This question is for Dr. Barelli and Mr. Saganash. Some have suggested that Article 46, which addresses the principle of territorial integrity of states, may be invoked to undermine Article 3, which addresses self-determination. In your expert opinion, is this legal interpretation accurate? If not, how exactly does international law balance the principle of territorial integrity with the right of self-determination and any other rights?
Dr. Barelli: Thank you for the question, senator.
Yes, there is an important relationship between Article 46 and Article 3. The reference to the principle of territorial integrity links to the external dimension of self-determination. In international law, self-determination is typically divided into two aspects, or dimensions, the internal one and external one, the external one being the one that would allow the beneficiary of the right to create their own state. During the negotiation and drafting of the declaration, that particular reference to territorial integrity was particularly added at the very last minute in order to clarify that, in essence, the self-determination recognized in UNDRIP had an internal character.
Senator Francis: Thank you.
Mr. Saganash: I would suggest 46(1) cannot affect the right of self-determination of Indigenous peoples. Read carefully Article 46(3) where it mentions that the provisions of the declaration shall be interpreted in accordance with several things, including equality and non-discrimination, which basically means that the right of self-determination of Indigenous peoples is no different from the right of self-determination of other peoples. Read Article 45, which says that nothing in the provisions of the declaration shall extinguish or diminish the rights of Indigenous peoples. In my view, that essentially protects Article 3, which is the right of self-determination of Indigenous peoples, but also Article 1, where it is said that international human rights law applies equally to Indigenous peoples.
Senator Coyle: Thank you, Dr. Barelli, Mr. Newman and Mr. Saganash.
My question is for Mr. Saganash. And let me assure you, Mr. Saganash, that this Senate committee did pass your bill two years ago.
Today we heard a number of concerns expressed by earlier witnesses. New Brunswick Minister Dunn was concerned about Bill C-15 being too vague, creating more questions than answers and resulting in more litigation. The three chiefs from Treaty 6, including Grand Chief Watchmaker, said this bill will fortify a colonial future, it’s a distraction, it’s like assimilation, our elders say it isn’t good for our people, and we must protect our treaty rights. Mr. Saganash, how would you answer those concerns? Could you help us, please?
Mr. Saganash: I don’t think the United Nations Declaration on the Rights of Indigenous Peoples is a document or an instrument that is vague or confusing. In fact, what was pretty vague back in 1982, back when we got the Constitution of 1982, was the concept of Aboriginal rights, and for a long time the Canadian government interpreted section 35 as an empty box. That is not the case for the UN declaration, and that’s 46 articles. I think it’s pretty clear in what it contains: the political, economic, social, cultural, environmental and spiritual rights of Indigenous peoples. So I think it’s going to help, as a matter of fact, to avoid those costly court battles we’ve known over the years — for a long time, as a matter of fact, and not just since 1982.
One of the things I’ve always mentioned when discussing the UN declaration and Bill C-15, and it was the same for Bill C-262, is that under Article 4.1 of the Department of Justice Act the minister must ensure that before any legislation is introduced it is consistent with the Charter of Rights and Freedoms. We don’t have the equivalent for Aboriginal rights and treaty rights in this country. In my view, Bill C-15 will achieve that.
Senator Tannas: First, let me congratulate and thank Mr. Saganash for all his work. There’s no doubt in my mind we would not be here with a government bill if it were not for his unceasing efforts. I say that with the greatest respect.
I have a couple of questions for Dr. Newman. There was a large concern around Bill C-262 with the operative clause and the application question. You raised it last time in hearings at this committee, and that was backed up, as I recall, by testimony from Professor Borrows, as well as from retired Supreme Court Justice Major, that having that in the operative clause was a major problem. That is no longer there.
You did mention, though, that it may be through this divergent expectations issue where someone somewhere has already said it’s going to be our position that where it sits right now means it’s operative. We heard very clearly from the Minister of Justice and Attorney General that that was not the case, that it was not operative. We’ve always heard, been told, and maybe we were being buttered up, that courts look at Senate hearings and what Senate observations are when they are looking at the true intention of a bill whenever it is unclear — if a bill is unclear, God forbid. Therefore, observations could be something we could put forward that actually makes sure that any ambiguity about this is, in fact, cleared up by us citing the testimony from the representatives of the government and from folks like Mr. Saganash and others who have come and in their own ways reiterated that.
What do you think about that as a defence? I have no appetite, and most senators, I believe, do not have any appetite to amend this bill. Is that, in your view and your experience, a satisfactory effort to clarify?
Mr. Newman: I would say it would be helpful if observations of that sort were put as clearly and as definitively as possible in whatever forms you can do so through a report of this committee and/or statements on the Senate floor. Especially if there is unanimity on that point within the Senate, that would be something a court could consider. That could resolve section 4.
When I referenced court actions that have been occurring in the context of the parallel B.C. legislation, some of those have been arguments put under section 5 —
The Chair: I’m sorry, Dr. Newman, the time has expired.
Mr. Newman: You might want to make observations on it as well.
Senator LaBoucane-Benson: I’m going to go back to you, Dr. Barelli, because you did not get to the jurisprudence in Canada in your answer. I think you outlined a very good understanding of FPIC internationally, but can you compare that to the jurisprudence in Canada?
Dr. Barelli: Thank you. This gives me an opportunity to finish what I was trying to say before.
I see important similarities between the duty to consult and accommodate, on the one hand, and FPIC on the other. There are differences, but in terms of principle, I see some important similarities.
To begin with, I can see why FPIC normally triggers some sort of anxiety for lack of clarity, but I don’t see a lot of clarity at the moment with the duty to consult in any case, precisely because the duty to consult in itself is quite a flexible concept. That’s what FPIC is.
One of the most recent decisions of the Supreme Court of Canada took a very important step toward going beyond the duty to consult and getting closer to FPIC in the Tsilhqot’in decision a few years ago. In one particular passage of the decision, the Supreme Court effectively told the government that whether or not there has been a declaration of title, whether or not title has been established, you should get the consent of the Indigenous people affected. That was not the key part of the reasoning of the court, but I think that the judges knew very well the circumstances and the context within which they did make that passage. That was an interesting legal development.
There are important similarities, but FPIC has a broader scope of application and, because the way in which it has been understood internationally, it would not necessarily require that a declaration of land title has been established in order for it to be triggered. In terms of how the process of FPIC unfolds, it’s very similar to the way in which the process of the duty to consult unfolds. I would say that it strengthens it in a way that better protects the rights of Indigenous peoples in line with the ends of the declaration and in accordance with the rights of Indigenous peoples to self-determination.
Senator LaBoucane-Benson: Can you clarify, then? I’ve heard from people in industry who are concerned that any Indigenous person in Canada can put their hand up and say, “FPIC.” If there is a project on the West Coast, someone in Quebec can say, “No, no, you can’t.”
The Chair: I’m sorry, your time has expired.
Senator LaBoucane-Benson: Thank you.
Senator Patterson: Mr. Saganash, you said it’s the right of rights-holders to challenge this bill if they feel compelled to do so. A recent Globe and Mail piece by the editorial board published on May 24 said that Bill C-15 “will be a huge make-work project for lawyers, sparking rounds of lawsuits and judgments and appeals.” In light of what you said about rights-holders’ rights to challenge, is Bill C-15 going to do the opposite of what it purports? Is it going to result in more costly and lengthy legislation rather than lessen the lawsuits Indigenous peoples must engage in?
Mr. Saganash: As I said earlier, the clarity of the U.N. Declaration of the Rights of Indigenous Peoples should allow us to avoid lengthy and costly court battles in the future, if the rights of Indigenous peoples under the UN declaration are upheld and respected by governments. Don’t forget that even when we had clear rights expressed in treaties or in laws, governments have always tried to avoid them or go around them.
In 1990, in the Sparrow decision, the Supreme Court was compelled to mention that although Cree rights were protected by a constitutional document, Hydro Quebec and the Quebec government decided to go ahead and build the James Bay project. That has been the Crown behaviour. And I’ve been in this business, as you know, Dennis, for 40 years. That’s what I have been observing over the last 40 years.
I’ll give you a very clear example. Under the James Bay Treaty, chapter 28, there is a provision that talks about both governments on an equal basis having the obligation to build community centres in every Cree village. It’s as clear as I’ve just expressed it. For 30 years, the Quebec government and the federal government avoided implementing that provision under the pretext that there was no definition of a “community centre” under the James Bay and Northern Quebec Agreement. It’s called “bad faith,” and that has been going on for far too long.
I think the UN declaration will be helpful in getting us to avoid court cases in the future if these inherent rights are upheld and respected by governments, both federally and provincially.
Senator Coyle: I’m going to go back to the question I believe Senator LaBoucane-Benson was about to ask Dr. Barelli. I wanted to hear the answer. I believe the question was about FPIC. Whose consent does the government have to get for a project? Is it those people in the immediate territory, those most affected, those with the territorial rights, or can any Indigenous nation intervene in any project?
Dr. Barelli: Thank you for the question, senator.
If we limit the scenario to development projects, then the Indigenous communities that would need to be consulted are those affected by the project itself.
In terms of who can or should give consent, then, of course, this is an important issue that needs to be approached carefully. There is a clear principle established in international human rights law whereby traditional forms of representation should be respected, and therefore this is something important the government must take into account. When the consultation moment approaches, then the government should try to understand how the community concerned makes decisions. It is not so much who is the representative, but how the community makes decisions.
To an extent, FPIC will require Indigenous communities themselves to organize, step up and take responsibility in order to provide a firm answer as to how we are going to make a decision as an affected community. That decision will have to be respected by the government.
Senator Coyle: Very helpful. Thank you.
Senator Tannas: Mr. Saganash, Minister Lametti did commit that in the action plan there would be work around defining FPIC. Do you support the government actually trying, in consultation — because they’ve already said they’re going to consult — to bring some tightness of definition to FPIC? If you’re armed with the Webster’s Dictionary, you know that consent has a definition that is not what has been described here, and there are people that get hung up over that. Is there work that could be done in the two-year time frame to define FPIC better?
Mr. Saganash: Thank you for that important question.
First of all, I would like to refer the committee to the 2018 study done by the Expert Mechanism on the Rights of Indigenous Peoples at the UN. I think it’s important to look at that and see how the process unfolds.
On a case-by-case basis, you cannot define FPIC, because FPIC will play out very differently in the James Bay territory where I’m from. We’re under a very particular constitutional regime called the James Bay and Northern Quebec Agreement. FPIC will function differently for Indigenous peoples in an area that is an unsurrendered, unceded territory. It depends upon the law, the facts and the circumstances of the given situation. That’s how it will work out in the future. That’s why it’s dangerous to define the process.
The Chair: Thank you, colleagues. I wish to thank our witnesses for meeting with us today. Thank you, Dr. Barelli, Dr. Newman and Mr. Saganash.
I would like to advise the senators that Senator Cotter will be replacing Senator Pate for this portion of the meeting.
I would like to welcome our next panel of witnesses, Regional Chief Terry Teegee from the First Nations Leadership Council of British Columbia; Mark Podlasly from the First Nations Major Projects Coalition; and Stephen Buffalo from the Indian Resource Council of Canada.
Regional Chief Teegee, Mr. Podlasly and Mr. Buffalo will each provide opening remarks of approximately six minutes. This will be followed by a question-and-answer session with senators for three minutes per senator. The first question will be asked by the sponsor of the bill, Senator LaBoucane-Benson, and the second by the critic, Senator Patterson.
If senators have a question, they’re asked to use the raise hand feature to signal this to the clerk. They will be acknowledged in the Zoom chat. Please note that committee members will be given priority. Any written follow up to questions should be submitted to the committee clerk no later than May 30, 2021.
Committee staff will advise me via text when there are 10 seconds remaining for both the witnesses’ introductory remarks and the question-and-answer time. I will do a 10-second visual countdown using my hands and, when I reach zero, I will let you know the time has expired.
I would like to turn to Regional Chief Terry Teegee for his opening remarks.
Terry Teegee, Regional Chief, First Nations Leadership Council of British Columbia: Thank you, mahsi’cho.
[Indigenous language spoken] Chiefs, hereditary chiefs, senators, witnesses, guests and presenters.
First of all, I want to acknowledge the territory that I’m calling from, the unceded, unsurrendered, continually occupied territory of the Dakelh people in Lheidli T’enneh near Prince George. I am Terry Teegee, and I am the regional chief of the British Columbia Assembly of First Nations presenting on behalf of the B.C. First Nations Leadership Council, which is comprised of the B.C. Assembly of First Nations, the Union of B.C. Indian Chiefs and the First Nations Summit.
First of all, I want to take pause to acknowledge what was discovered yesterday in British Columbia in the Tk’emlúps te Secwépemc First Nation in the Kamloops area where there was a discovery of 215 graves near the Kamloops Indian Residential School. The heart-wrenching discovery of these 215 graves demonstrates that the Crown and the government had imposed on Indigenous people the genocidal policies of the Indian residential schools which has had dire consequences on Indigenous people. Certainly, over the last 152 years, Canada has had blood on its hands in the treatment of Indigenous Peoples. That said, it demonstrates why we need to change the narrative and uphold the human rights of our Indigenous Peoples. Bill C-15 does that in terms of recognizing our Indigenous rights, our inherent rights and our human rights.
Thank you to the committee for an invitation to offer some brief remarks. I am honoured to speak on the topic of the federal legislation to implement the United Nations Declaration known as DRIPA here in British Columbia. We have an act that has been passed, and I speak in support of Bill C-15 as amended.
We respectfully urge you to expeditiously advance the work of reviewing Bill C-15. In our view, the period of review should conclude. All ideas have been extensively explored and debated, and the bill should be recommended to be passed. The bill was approved by the House of Commons at the committee stage. Our collective focus needs to shift to implementing the United Nations Declaration through an action plan and other steps. We accept that the text of Bill C-15 is not perfect. Rather, it is an opportunity for our governments to implement the Declaration. This bill is a stepping stone toward our mutual reconciliation. This centimetre of progress will be followed by kilometres in future generations.
B.C. First Nations will continue to engage in the years ahead to implement UNDRIP. In the best and most effective ways possible, we will work together to ensure the Government of Canada and Parliament are doing the necessary work to uphold our Indigenous human rights, which are affirmed in UNDRIP and alive within our laws, policies and practices. There will be many more discussions and debates, but we must shift from debate to implementation. Fourteen years have passed since the UN General Assembly passed the declaration — already far too much delay. We now fully expect a time of progress.
On November 28, 2019, the Declaration of the Rights of Indigenous Peoples Act, or DRIPA as it is known in British Columbia, was passed by the legislature unanimously. We made the shift to passage and implementation and action planning. The real hard work is under way in B.C. It is not easy work, but it is necessary. The promises that have improved the lives through implementation make the sacrifices worth it. We need to have harmony and consistency with Canada, as well as a clear set of commitments by both provincial and federal Crown in relation to Indigenous Peoples and our human rights.
As members of this committee know well, disputes between levels of government are often a barrier to making progress. Bill C-15 must be passed so that this will not be the case with the human rights of Indigenous Peoples. All levels of government, Parliament and legislative assemblies need to move forward.
DRIPA was widely supported by B.C. First Nations here in British Columbia. It represents a sea change from the B.C. Crown’s denial of our title and rights. British Columbia now affirms our existence as distinct peoples in acceptance of the Truth and Reconciliation Call to Action, Call number 43, to adopt and implement the declaration as a framework for reconciliation. This work is especially urgent —
The Chair: I’m sorry to interrupt you, regional chief, but your time has expired.
Mark Podlasly, Director of Economic Policy and Initiatives, First Nations Major Projects Coalition: Thank you for the invitation to speak today.
My name is Mark Podlasly, and I’m a member of the Nlaka’pamux First Nation in southern British Columbia. I’m speaking to you from the Coast Salish territory in southwest British Columbia. I’m the Director of economic policy at the First Nations Major Projects Coalition, a national Indigenous collective of 71 nations working to ensure that First Nations receive a fair share of benefits from projects on our territories through the ownership of equity and proposed nationally important pipelines, electric infrastructure, transportation routes and other revenue-producing initiatives.
I’m here today to speak on behalf of our members in support of Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples. For our members, UNDRIP already frames how we see development and our ability to direct decisions that are supportive of our interests. The declaration focuses Indigenous attention on how First Nations-supported development can enable self-determination as described in UNDRIP Article 3.
However, it is Article 4 that, in the opinion of the coalition, will be key to successfully implementing UNDRIP in Canada. Article 4 states that Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal or local affairs, as well as ways and means of financing their autonomous functions.
This financing, or fiscal component, is key to ensuring that First Nations have the means to pursue UNDRIP-themed self-determination. No government, Indigenous or not, is truly self-determining if it is reliant on an external government for financial viability. It is impossible for a government to function at any level without a source of revenue to pay for its operation. This is why our members see revenues from Indigenous-owned equity in major projects as providing the financial means for First Nations to implement UNDRIP’s self-determination. Without it, UNDRIP implementation will be impossible.
While many Indigenous communities in Canada may desire to own revenue-producing equity and projects within their territories, the current financing requirements of First Nations equity participation are prohibitive. This is because the majority of Indigenous communities in this country lack the financial means to access the money that capital markets require to secure equity-style loans at competitive rates.
The coalition has first-hand experience with the challenges Indigenous communities face in seeking competitively priced capital. In one case, the coalition reached out to the financial market on behalf of our members who were attempting to acquire equity in a natural gas pipeline. The coalition contacted 70 institutional investors, and only a handful were prepared to offer competitively priced capital to the First Nations. However, because the First Nations technically don’t own assets — they are owned by the Crown for our use — the interest rates offered on the equity capital were at rates between 12 to 15%, when the return on investment of the asset was only 8 to 10%. In this scenario, our members had to abandon their attempts to acquire ownership in the pipeline crossing their territories. This resulted in a potential revenue loss of over $200 million that the communities could have used for self-determination purposes over the pipeline life cycle. This is only one example of how access to capital could have resulted in equity-produced long-term own source revenues for the First Nations to produce UNDRIP-themed self-determination.
Equity involvement in projects, in effect, co-ownership, represents the truest form of consent. A project with Indigenous co-owners ensures First Nations communities are directly involved in the management of the project. Equity participation gives tangible expression to the principle of free, prior and informed consent, as articulated by UNDRIP Article 32, as well as the previously mentioned Article 4.
For greater Canadian society, equity partnerships with Indigenous communities reduce investment risks for investors and can result in the achievement of stronger environmental, social and government sustainability project ratings. This is a key consideration as project proponents and the financial sector look to attract global capital to Canadian projects.
Ultimately, equity participation by Indigenous communities in major projects is a gateway to the mainstream inclusion of Indigenous people in the economy and will have positive social impacts as the secure revenue streams realized by the First Nations raise the standard of living for Indigenous people.
It is in Canada’s economic and social interest to establish financing supports that enable Indigenous communities to become equity owners in major projects. These financing supports can be in the form of loan guarantees or lower interest equity-style loans. The coalition believes the Canada Infrastructure Bank could play a valuable role in servicing these needs. CIB support for Indigenous equity investment could be acted upon quickly and would not require legislative change or significant regulatory approval. These and other options were outlined in a recent paper commissioned by the coalition entitled: Improving Access to Capital for Indigenous Groups to Purchase Equity Stakes in Major Resource Projects.
The advice I wish to provide the committee today is that the key to making UNDRIP work for the benefit of all Canadians is to start with Article 4, which is about ways and means of financing Indigenous self-determination. How this is implemented will determine if the promise of UNDRIP and Bill C-15 will be fulfilled.
The Chair: Thank you, Mr. Podlasly.
Stephen Buffalo, President and Chief Executive Officer, Indian Resource Council of Canada: Thank you, chair, senators and committee members, for the opportunity to speak today.
My name is Stephen Buffalo, and I’m from the Samson Cree Nation, Maskwacis. I am the President and CEO of the Indian Resource Council of Canada. Our organization represents over 130 First Nations across Canada who produce or have a direct interest in the oil and gas industry. Our mandate is to advocate for federal policies that will improve and increase economic development to rise out of poverty and create wealth for the needs of our people in future generations.
The members of the Indian Resource Council, like all First Nations, obviously find a lot to like in the UNDRIP, which we support without question. You cannot deny the dysfunction and trauma that our people on our own traditional territories have been through throughout history. There is a lot of ugly history implemented by the government and probably what is documented was created.
Within our communities, the majority of the members support our involvement in the oil and gas industry — not all, but most. That’s because the revenues generated from the sector have been essential to the well-being of our people for things like elder services, housing, cultural programs, recreation centres for the youth and other programs and services that are chronically underfunded by the federal government or not funded at all. They provide some autonomy in spending that we do not have with federal funding. The revenues allow us to exercise our self-determination.
It has been all across the news and social media. First Nations deal with social problems on a daily basis. However, we cannot address these issues of the opioid crisis, missing and murdered Indigenous women, housing issues and clean water without a healthy economy.
Canada is rich with an abundance of natural resources, and with today’s modern approach, industry is now implementing environmental social governance, ESG, which is a good start to reconciliation. This has opened the door to First Nations’ owning assets with major revenue streams. Resource revenue sharing is the key to success not only for First Nations but also for provinces, the federal government and industry.
Our nations all cannot hit the geographic lottery with location. First Nations all cannot have casinos. We all can’t have special investments such as tobacco ventures. But with the natural resources in the ground, which under treaty we did not give up, there is a better future for all.
I’m saying with partnerships, investment with industry, be it oil and gas development and pipeline infrastructure equity ownership, the opportunities can be very beneficial to affected communities. First Nations have worked hard through the years to finally have this opportunity to work toward sovereignty.
Let me share with you my biggest concern about Bill C-15. The legislation says that Indigenous people need to provide consent for a project to go forward, but it doesn’t say who can provide or deny consent and how they can demonstrate it.
If you’re saying consent is provided by chief and council through a band council resolution or a referendum, then that’s one thing. But if you’re saying a small group of Indigenous activists who declare that their consent is required and they have a right to blockade any project they do not like, or just get standing in court to contest it, then I think that’s a recipe for disaster. I think it would be better if we can define free, prior and informed consent in the legislation and determine who can represent and make decisions on behalf of Indigenous people for the purpose of project approvals.
Better yet, this committee could engage with Indigenous communities across Canada to come to a consensus on what consent means before passing this legislation, because you know as well as I do that some people think it’s a veto. If the committee doesn’t think it’s a veto, then it should make it clear.
Putting the declaration verbatim into federal legislation without these definitions is going to allow special-interest groups to weaponize UNDRIP. UNDRIP provided First Nations a shield that now could enable some groups who disagree to turn it into a spear against their own people. We’ve seen that. This isn’t me being paranoid. We see it in our communities and on our projects all the time. I have even heard it from some MPs, using UNDRIP to cancel the Trans Mountain expansion, for example, even as many of our members are actively involved in negotiating to purchase it.
This document cannot take away the ability for First Nations to say “yes” to a project in their territories. Whether or not you support the oil and gas industry, it is the right of the 131 nations of the Indian Resource Council of Canada to develop their resources as they see fit.
At the end of the day, if the bill still remains vague, such as it is in its current form, I believe some judge down the line is going to decide what FPIC means in the context of resource development, but no one is going to want to invest in any major projects in our country, let alone our communities, until that day comes.
The IRC members want better protection for Indigenous rights —
The Chair: Sorry, Mr. Buffalo, but time has expired.
I would now like to open the floor for questions, beginning with the sponsor of the bill, Senator LaBoucane-Benson, followed by the critic, Senator Patterson.
Senator LaBoucane-Benson: Thank you to all of the witnesses on this panel.
My question is for Regional Chief Teegee. I read your testimony in the House of Commons INAN Committee, and in it, you spoke about only seeing the benefits of passing the law in British Columbia because it brought certainty and predictability within industry. Would you mind explaining how UNDRIP has brought predictability and certainty to industry in B.C.?
Mr. Teegee: It sets out the roles in terms of how decisions are made. As I stated at the legislature, in terms of requiring free, prior and informed consent, it creates that space where all those who are able to make those decisions come together to create that space to make decisions together. Right now, the current state of affairs is the issue of courts; it’s brought into court to make those decisions.
The more that we know in terms of who makes those decisions, and also the Indigenous governing bodies, FPIC creates that space to make those decisions together, and that creates more certainty and sustainability. That’s what we’re seeing here in British Columbia.
Senator LaBoucane-Benson: Thank you very much.
Senator Patterson: Thanks very much to all the witnesses.
Mr. Buffalo, it’s a pleasure to see you again. I remember meeting with you several times during the last session of Parliament to discuss your concerns about Bill C-69, Bill C-48 and Bill C-262, among others. I’m sorry to hear you still have valid concerns today with Bill C-15. I imagine you might be getting tired of constantly pointing out concerns and not having them acted upon.
I would like to ask you, as a rights-holder and as an Indigenous leader, how does it make you feel to hear your concerns, as you’ve heard, about uncertainty characterized as fear-mongering?
Mr. Buffalo: Thank you for the question. Yes, it is good to see you again, Senator Patterson.
Senator Patterson: Thank you.
Mr. Buffalo: First Nations are really trying to take their stake in providing that opportunity for the communities. We all know the Indian Act does not work for us. I call it “soft communism” that our communities have to be engaged in.
The fear-mongering part is something when you want to see the activism of trying to stop the projects that are in and around our communities. When our leaders make the decision, it is in the best interests of the community to ensure the opportunity in their backyard and in their traditional territories is given to them. In some respects —
The Chair: I’m sorry, again, Mr. Buffalo, but time has expired.
Senator Stewart Olsen: Thank you for joining our committee and presenting your points of view. It’s all been very interesting.
My question is for Mr. Podlasly. Chief Sharleen Gale, who chairs the First Nations Major Projects Coalition, write an op-ed published in the Hill Times entitled “UNDRIP legislation is mostly symbolic: here’s how to give it meaning.” Chief Gale said that the approach the governments take to listening and acting on the needs of Indigenous communities concerning the implementation of UNDRIP will determine the success or failure of this potentially game-changing exercise. Do you think that ignoring concerns raised to us by Indigenous rights-holders, other organizations and networks would fit in with the meaningful implementation that Chief Gale called for in her piece?
Mr. Podlasly: Thank you, senator.
Let me use some of my time to ask for clarification. The question you’re asking is this: Should legislators ignore Indigenous concerns as part of the implementation of UNDRIP?
Senator Stewart Olsen: No, I see what you’re saying, but it’s more “perhaps put less weight behind some people’s protests and more weight behind people’s support.” We’re hearing a lot of people saying they have not been heard, and it’s a worrisome thing to us who have to make a decision on this bill.
Mr. Podlasly: I see.
The thing about UNDRIP is that, in its 46 clauses, if you read through it, it’s quite a thin document in the scope of what it’s trying to do. That’s because it applies to the world. It’s up to host states to negotiate or to discuss with their Indigenous populations what it will mean and how it will be implemented. The reason it was put in place as a document, as such, is because it is flexible. It allows Canada to negotiate, discuss and talk.
UNDRIP, as the regional chief pointed out, is the beginning. It will take time to flesh out what it means in this country. The passing of UNDRIP simply sets the table for further discussions in many of these areas. I think that is what Chief Sharleen Gale was getting at in that piece.
So no, I don’t think anyone should be ignored in this process, but as the regional chief said, it’s the centimetre leading toward the kilometre of success.
Senator Stewart Olsen: I hope that’s so. Thank you.
Senator MacDonald: My question is for Mr. Buffalo.
Stephen, it’s good to see you again, my friend. We met a few times a few years ago on Bill C-48 and Bill C-69, not only in Ottawa, but I went to your backyard. It was a great visit for me; I enjoyed it very much.
I was going to ask you about issues of consent, but you gave a fairly eloquent response to it already and addressed it, so I want to ask you about your experience over the past two years, since we spoke last, with the Indian Resource Council of Canada. Are things getting better, are things getting worse or are things at a standstill? I would like to know what you’ve had to deal with over the last two years since these bills were passed.
Mr. Buffalo: Thank you, senator, for the question.
Again, we advocated for our position with Bill C-69 and Bill C-48, obviously the investment side and the ripple effects to the communities that are invested in this industry of oil and gas already, and then those opportunities and the policies in place to stop development and to stop the export of our natural resources to different parts of the world and the impact on the communities. You couple that with the Russian and the Saudi dispute with oil, causing the price to really hit bottom, as well as the pandemic where we are now. The communities are really suffering in this whole process.
We’re trying to advocate. At least one program that is working is the site rehabilitation program on the orphaned and abandoned wells that was implemented in Alberta, but that’s only a small fraction of what needs to happen here. In the sector, we see the benefit, because it’s in our territory. We would like to see it move forward, but right now, it’s moving at a snail’s pace, which is really affecting our communities financially.
Senator MacDonald: Are there any parts of the country that the Indian Resource Council of Canada serves that are having some success as opposed to two years ago?
Mr. Buffalo: Right now, I wouldn’t call it a success yet, but things are starting to come back to a certain state of getting back to “boots on the ground,” so to speak. Again, some of our communities have service companies, and within the sector right now, the site rehab program on abandoned wells is starting to activate and pick up. Again, it’s minuscule to the really big picture as to what can really be done.
We’re just hoping things progress with the initiatives that the federal government is implementing and start working together with the provinces and the federal government to ensure we’re all moving forward together.
Senator MacDonald: Thank you.
Senator Coyle: Thank you to all of the witnesses for your very important testimony. I certainly share and appreciate your points about how critical full economic participation and leadership are to self-determination for Indigenous Canadians. It’s absolutely critical, so I hear you on that.
My question is for Chief Teegee. Chief, I hear you when you say it’s time to pass Bill C-15. As you said, it’s time to shift from debate to implementation. You’ve been actively involved in B.C.’s DRIPA legislation. Some of our witnesses have very valid concerns because they weren’t adequately or, in fact, at all consulted in the drafting of Bill C-15. How do you feel these concerns could be addressed during the development of the action plan that would follow the passage of Bill C-15?
Mr. Teegee: This is the second time we’ve looked at this bill. This is really a redrafting of Bill C-262, with some amendments, so we went down this road several years ago. We’ve looked at it. As a matter of fact, this is an improvement on Bill C-262. We compared it to our DRIPA bill here in British Columbia and provided some amendments. We know it’s not exactly perfect and to everyone’s liking, but nevertheless, it is far better than Bill C-262.
I think it’s really important that not only were many First Nations engaged when Bill C-262 was brought forward, but also during this round. We looked at it with our chiefs. I certainly hope other regions did the same. We believe it’s an improvement on Bill C-262. I think it’s important that those First Nations that have an interest in this bill look at it, provide amendments, if necessary, and provide a view on this bill. As far as we’re concerned, here in British Columbia, we have a vast majority of support for this bill in its current amended state.
Senator Coyle: Could you say anything at all in the remaining time on how, going forward, those communities and leaders who have expressed concerns could be engaged well in that process of development of the action plan? That’s another opportunity for involvement.
Mr. Teegee: It certainly is, as we move towards implementation, and this bill will pass in all determination, I believe. Where the rubber hits the road is within the action plan. I certainly hope there’s a lot more involvement of many First Nations because that’s really where some of the issues come up here in British Columbia. Now we’re getting to the issues of the matters in British Columbia as we start implementing an alignment of laws. In all respect, this is the first small step. The huge step is getting the alignment of laws.
The Chair: Sorry, Regional Chief, but the time has expired.
Senator Francis: This question is for Mr. Podlasly. I understand the First Nations Major Projects Coalition helps your members advance their major projects. I’m wondering if you could help explain how bringing Indigenous people and industry together as equal partners at the beginning of the project process helps increase the viability of projects and certainty for both sides.
Mr. Podlasly: Thank you, Senator Francis.
One only has to look in the newspaper or the archives over the past 40 years to see that there have been collisions between industry and Indigenous people and government and Indigenous people. A lot of it goes about who has jurisdiction on the land but also who has a say in these territories that are core to our identity.
The coalition works to bring those partners together so Indigenous people are involved right at the beginning and at all levels of a project. It’s one thing to be consulted as an Indigenous community after a project has already been planned, ready to go and we’re consulted at the last minute. It’s quite another to have Indigenous people involved as co-partners or even co-proponents of an industrial project, a pipeline, a right-of-way or a transmission line. That brings certainty to the capital markets because investors looking at that know that the risk that Indigenous people might bring to a project is being mitigated. That’s the biggest thing.
The coalition itself put out a report. I mentioned the report already on capital access, but in March we did a complete examination of ESG, environmental and social governance, and discovered there was no Indigenous involvement in any of those standards, which is an unmitigated risk.
Your question is how does bringing those parties together, Indigenous and industry, help Canada, help the projects and help First Nations? It’s about mitigating the risk. For the country to move forward in rebuilding infrastructure post-COVID, projects will not advance if Indigenous people are not deeply involved in the decisions of those projects.
Senator Francis: Great answer. Thank you.
Senator Tannas: I’ll keep Mr. Podlasly busy. I’ve got a couple of questions.
First, Chief Crystal Smith from the Haisla Nation testified, and we got into a discussion using the concerns around the Wet’suwet’en example about who gives consent, and Mr. Buffalo has echoed that. Her response, I think, was interesting. She said that, essentially, communities need to prepare the pathway and agree upon what the pathway is for FPIC. My first question is this: In your position, how ready are the communities? What role will your organization play in helping communities prepare for the FPIC question?
Second, there are only so many obstacles that can be put in front of a business with capital before they take their capital and go do something else. There would be a lot of people who would say this is one more obstacle that makes it easier for capital to go somewhere else and do something else. Given that Canada is taking a leadership position in the world, maybe we ought to put our collective money where our mouth is — the public, taxpayers — and actually pay to have the FPIC process, or a big chunk of it, paid for by the government. Then everybody would at least see what the process is because it would be done in a transparent fashion, and the people with capital at risk at the front end wouldn’t be spending gobs of money on something. I’d be interested to know your thoughts on that, Mr. Podlasly, or Chief Buffalo. I’m sorry, but you only have about a minute and a half because I burned up the rest of the time.
Mr. Podlasly: There are two questions. The Wet’suwet’en and Chief Crystal.
The coalition, FNMPC, is assisting some First Nations now who have watched what’s happened in the Wet’suwet’en situation and realized they have work to do. First Nations in some parts of the country are now starting to reframe their interests and their historical statements of elders into UNDRIP-type language because they understand that’s the clarity that’s needed to be heard. They understand that’s the clarity needed to speak as one voice, as a community, as a nation, as an Indigenous people. The question was: What is the coalition doing to help that? We’re already involved in that.
Second, also understand that Indigenous people see the same news everyone else does. We know —
The Chair: Sorry, Mr. Podlasly, your time has expired.
Senator Tannas: My fault. Sorry about that.
Senator Hartling: Thank you to the witnesses today for your very interesting presentations.
I want to say thank you to Chief Teegee for sharing that sad news about the discovery of the 215 graves near Kamloops and the residential schools. It’s a grave reminder to all of us of why we’re working on these kinds of issues and why we badly need such things as UNDRIP.
You’ve obviously had the experience with DRIPA. Looking at DRIPA and UNDRIP, how will they interface? What has it meant to the people of British Columbia to have DRIPA? What has it meant and what has it given them?
Mr. Teegee: For example, we’re working on an action plan right now and it’s very close to being completed. Even previous to this, we were working on things such as Environmental Assessment Act amendments that would recognize the decision makers. It’s setting the pathway of how decisions are made.
One of the things about the amendments within British Columbia and the Environmental Assessment Act was about Indigenous-governing bodies or however those communities — for example, the Wet’suwet’en — make a decision on a major project. Now, some of these companies perhaps wouldn’t even be allowed in the territory. A good example is Enbridge because of their track record of how they treat Indigenous peoples and how decisions are made. So I think with investment, perhaps some of these companies may not even invest in our territories, considering they don’t recognize or respect Indigenous people.
Further to the Environmental Assessment Act and also alignment of laws, we need to get environmental assessment to live up to UNDRIP, which is some of the work we’re doing right now, to have something very similar to DRIPA. UNDRIP, the federal act, could follow those same laws. If we get there and have an environmental assessment, that is, at least on the federal side, that does the same thing. With British Columbia here, First Nations create their own EA process. It’s recognized. They’re the decision maker. That’s what we need. That creates predictability and certainty.
All this, DRIPA here in British Columbia and the federal act, creates that framework. It’s a framework to start creating those spaces where we can all make decisions and who sets out the rules of all governing bodies. I commend all those governments, such as the City of Vancouver, municipalities, that are passing DRIPA as policy and legislation here in British Columbia. We need to do that on the third level as a federal act.
Senator Hartling: Does it feel empowering to have this part move forward?
Mr. Teegee: Yes, it really does in terms of recognition of not only our Indigenous rights entitlement but our human rights. Thank you.
Senator Hartling: Thank you.
Senator Anderson: Thank you very much.
My question is for Chief Teegee. The relationship between Indigenous rights holders and the Crown is predicated on honour. We are never provided more certainty than the notion of the honour of the Crown. Indigenous people have decades of evidence that points towards Canada’s disregard for that honour. Is there something specific in Bill C-15 or in this process that inspires confidence that it will change the narrative and strengthen Indigenous and human rights?
Mr. Teegee: UNDRIP in and of itself is an international tool and a recognition of many Indigenous peoples throughout the world that were colonized. I think it creates the space where there is equality. Far too often in colonial states, there’s genocidal acts as we’ve seen in the residential school system and First Nations brought to reserves. It creates a space for equality. That’s why there is a declaration. Now, as a framework to implement in Canada and British Columbia, I believe it repudiates the Doctrine of Discovery and terra nullius.
What we propose is to recognize it’s not just discrimination, it’s racism that we need to deal with. I think overall the intent is to bring out those issues we’ve been battling with for many decades since colonization began. The issue of racism is still alive and well in Canada and the United States and around the world, which we’re dealing with. One just has to look at the newspaper and racialized peoples — George Floyd and the treatment of Ethan Bear that we’ve seen in the hockey playoffs. Right now we need to deal with this issue of racism. This is perhaps a positive step to start dealing with those issues and the treatment of Indigenous peoples not only in British Columbia but in Canada.
Senator Cotter: I think my question is primarily for Chief Teegee. Mr. Buffalo’s remarks identified support for UNDRIP and the bill but identified a series of uncertainties, and that was expanded upon in the exchange between Senator Patterson and himself.
Chief, my question is about the degree to which the B.C. legislation and process has taken us forward as opposed to where we are presently and whether or not the uncertainties, in your view, are capable of being addressed in the adoption of this legislation. Do they need to be tolerated? Do they create some problems that we don’t have now that will need to be addressed in the future if we move forward at a national level with this bill?
Mr. Teegee: Thank you.
Senator Cotter, the issue that came up was whether individuals have rights versus the whole nation. The rights are held, and it’s stated in the Supreme Court of Canada, by the nation. It’s by the group that identifies themselves.
The second part is the Indigenous governing body. Within UNDRIP, identifying how you want to govern yourselves is up to you. It’s your self-determination and your sovereignty to recognize each other as a governance. That may require repatriation or reconstituting yourselves in terms of how you govern yourselves.
Here in British Columbia, I believe those are some of the steps we’re taking, and that creates more certainty in terms of who makes the decisions. If a First Nations group has their own environmental assessment and can make their decisions with the ministers, that provides a lot more certainty than the current state we live in.
The purpose here in British Columbia is to bring everybody in the room, the decision makers, so you have that certainty that it is binding. When a development project comes to the floor, everybody comes into the room and we make the decisions together and deal with all the issues. We all know that environmental assessments look at a number of issues and try to address them. That’s what UNDRIP is trying to do here in British Columbia and will do in the future.
Senator Cotter: The uncertainty that Mr. Buffalo spoke about, the lack of consensus in relation to FPIC, how do you see that in the B.C. context?
Mr. Teegee: When we’re talking about consent, it really is an issue where First Nations have to come together in terms of repatriating and perhaps reconstituting themselves. The current state of affairs is that many First Nations are coming back together and creating that space.
The Chair: Regional Chief, the time has expired.
Senator LaBoucane-Benson: I have a question for Mr. Podlasly as well. We know that UNDRIP is already being used to interpret Canadian law. It’s an international instrument, and that’s already happening. The day after Royal Assent of this bill, the jurisprudence on the duty to consult will still stand and will be the way that projects are imagined. You have a lot of experience working with different industry partners. Where do you think the fear or the concern lies? We know nothing will change the day after. It’s the action plan and looking at a consultative process to figure out what UNDRIP is. Where do you, in your experience, think the concern lies?
Mr. Podlasly: I think the concern is that UNDRIP will be a new risk. It poses new risks to businesses and their operations, to them securing capital and to investments. The earlier question was what happens, and capital is only so patient. I think the fear is that this will put up another set of roadblocks or more hindrances to making the investment and decisions for enterprise.
You’ve heard already from several of us here that we don’t see it that way, or some of us don’t see it that way. We see it as providing clarity, because all of a sudden the rules of engagement are clear. It’s not going to be in theory, with court decisions and having to go to court for every decision on whether an Indigenous group is participating, has given consent, has given agreement and has been consulted.
My answer to the question is I think that enterprise is fearful of a new barrier.
Senator LaBoucane-Benson: Do you think our governments have to stop talking about the sky falling and embark on a communications plan that would talk about how this sets the table for better projects? There’s so much communication about the opposite. It seems to me that if our governments could focus on how this will help, then maybe industry would feel that way as well.
Mr. Podlasly: This is where I get to answer your question and Senator Tannas’s at the same time.
Capital is only so patient. Capital flight, or worse, capital avoidance, will happen if you can’t get money into Canada, into these projects.
This is an international document. We’re not the only nation in the world implementing this. There are dozens of nations moving down the same path. Capital will go where it feels secure, where it feels the risk is removed. This, in the coalition’s perspective, does that. It lays out very clearly how that engagement will happen with Indigenous people and provides that security. Yes, there’s a positive side to this which gets lost.
The other thing that happens is there are 46 clauses in this agreement. It’s not just that one section about consent. Thank you for those five seconds, Senator Christmas.
The Chair: Thank you, Mr. Podlasly.
Senator Patterson: Mr. Podlasly, I’ve had the great honour of supporting the First Nations Major Projects Coalition from its meetings in a church basement to now an organization with 71 members and counting and involvement in projects worth, I understand, upwards of an impressive $7 billion.
You said today that the key to the implementation of UNDRIP is based on Article 4. There are also Articles 20, 21 and 32 on Indigenous economic rights. Because Bill C-15 doesn’t talk about those economic rights, would a preambular clause clearly pointing to the importance of economic stability as a path to sovereignty be useful, in your opinion?
I would appreciate Mr. Buffalo’s comments on this as well. Thank you.
Mr. Podlasly: Thank you, senator.
Your support of the coalition is noted and greatly appreciated. You’re right; we have grown to 71 nations across the country right now that are looking for exactly what we’re talking about here, economic security for their nations.
On the question about the preamble, the challenge is that UNDRIP is 46 clauses. They’re all equally important to Indigenous people. The preservation of culture, the continuation of culture, of membership, of continued access to everything from the environment, those are all in there. To just choose one from the economics is not going to be helpful. I do come here from the coalition. We are focused on the economic component of it. Yes, we would love to see something like that, but it’s not fair to Indigenous people writ large.
The other question that was asked earlier was about groups that still want to be consulted and about their interests. It would be wrong to put one part of UNDRIP up front.
Senator Patterson: Thank you.
Mr. Buffalo, should we have economic rights in Bill C-15 rather than as an attachment in the declaration?
Mr. Buffalo: If you ask the 130 members of the Indian Resource Council, I’m pretty sure you’ll get 130 different answers, as each community is different. That stems from one of the initial issues, that the consultation of this has been obviously viewed that it wasn’t done properly. But ultimately, from an investor’s standpoint, and we’re looking at an economic position that the communities want to be self-sufficient, there could be something to talk about. But again, when this framework is to be set up and if it moves forward, obviously a lot of work will have to go in behind it. At the end of the day, the document talks about rights, rights, rights. Of course, we have to take our position. Achieving self-sovereignty —
The Chair: Thank you, Mr. Buffalo. Time has expired.
Senator Coyle: My question is for Mr. Podlasly. In a previous panel, Grand Chief Abel Bosum spoke to us about the decades-long experience of the Crees of northern Quebec in being co-owners and co-proponents of projects in a variety of areas: hydroelectric, forestry, mining. Much of that is a result of their involvement in the James Bay and Northern Quebec Agreement, of course. He spoke about how so much of that, although positive, was reactive in nature, and a lot of what you’ve spoken about is also reactive in nature. Being co-owners or even co-proponents sometimes is reactive. What they’re doing there now, which I find fascinating, is taking a leadership role. They’re looking at lithium, for example, and the green economy, and them bringing the province and others to the table so they would be in the driver’s seat, in a leadership role. Do you see Bill C-15 possibly enabling more First Nations and Indigenous communities in Canada to take that leadership role, to be in that driver’s seat on economic issues? If so, how do you see that happening?
Mr. Podlasly: Thank you for your question.
I’d like to bring up an example at the coalition. About two years ago, there was a proposal for one of the LNG plants on the coast to be using hydro-generated electricity to reduce the carbon footprint, and there was a challenge by the provincial utility to run that. They didn’t have the money to build or rebuild the line. The First Nations, all the members of the coalition, proposed, “No. How about we become the proponents? We’ll find a partner and run the line. We will build it.” That’s the sort of vision that you’re starting to see from Indigenous people who understand that there’s a possibility. We’re on the cusp of it right now with things such as UNDRIP, where there’s the ability to make those decisions and be full partners.
Those things happening in Quebec are starting to happen in other places in the country. Again, it’s an incremental process. As UNDRIP is rolled out and the action plan is in place, you will see First Nations rise to the opportunities. We do not exist in a vacuum. As First Nations, we see what’s going on in the country and the world in economic growth and opportunities, and we want those for our children. We would like them to be compatible with our cultural interests, and we are the best people to decide what is compatible with our cultural, spiritual and linguistic interests.
Senator Coyle: Thank you very much.
Senator Tannas: My question is to both Chief Buffalo and Mr. Podlasly.
Based on exchanges that we’ve had, do you think it would make sense for the government to provide funding now to communities exclusively to help them prepare for FPIC, to develop a system that is unique to them? We’ve heard a lot about that. It will not be one size fits all, and it has to be unique to each community, go get them to document it and agree as a community about it. Given everything, would it not make sense that the government pay for that, not the first business that has the idea about something they’d like to talk about and start the wheel turning at that point? Does it make sense, starting the day after this receives Royal Assent, that we start funding that work that must be done by all communities?
Mr. Buffalo: Thank you, Senator Tannas. I should let you know I’ve never been elected as a chief, but thank you for the compliment.
We see our communities now evolving and creating their own election law. We’re seeing a democratic process, colonized as it may be. I have heard that criticism. We had to play this game through the Indian Act. Now that our election laws are being, through referendum, ratified in our communities, we can have our leadership make that decision.
Having that opportunity of money coming to help define free, prior and informed consent is a start. Again, you’re going to get different results from different communities, probably in each different treaty region and area.
Mr. Podlasly: I look at that, again, as taking one part of UNDRIP. There needs to be an overall plan about this framework being rolled out. To just focus on FPIC, which is Article 32, negates the rest of the power of the agreement. The power is about a new relationship between Indigenous people and their host state.
So, I hear you; it is onerous on business to be responsible for the role in consultation. That has been offloaded from the Crown to proponents, who then have to pay for it and go through that entire process. It is the responsibility of the Crown, and it is part of the overall engagement.
Do I think that should be pulled out separately and done that way, the day after? It depends what the entire framework looks like. What is the rollout plan? What’s the implementation plan?
Senator Tannas: I get it, but the rollout involves FPIC, so we have to get this settled for a whole host of reasons, right? Thank you.
The Chair: The time for this panel is now completed. I wish to thank our witnesses, Regional Chief Teegee, Mr. Podlasly and Mr. Buffalo.
For our next panel of guests, we welcome Chief George Arcand Jr. from Alexander First Nation; Arnie Bellis, Chair of the Indigenous Resource Network; and Dale Swampy, President of the National Coalition of Chiefs.
Each witness will each provide opening remarks of about six minutes, followed by a question-and-answer period with approximately 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, Senator Patterson. If senators wish to ask a question, they are asked to use the raise hand feature on Zoom to signal this to the clerk. They will be acknowledged in the Zoom chat. Please note that committee members will be given priority on the list of questioners. Any written follow-ups to questions should be submitted to the committee clerk no later than May 30, 2021.
Committee staff will advise me through text when 10 seconds remain for the speaking time of both witnesses’ introductory remarks and senators’ question-and-answer time. I will do a 10 second countdown using my hands, and when I reach zero, I will let you know that time has expired.
I will now turn to Chief George Arcand Jr. for his opening remarks.
George Arcand Jr., Chief, Alexander First Nation: Good afternoon. I am presenting to you from the Alexander First Nation located in our traditional territory and Treaty 6 territory. I thank our elders for their prayers, and I am thankful for this day.
Out of respect for my great-great-grandfather Okimaw Catchistahwayskum, who adhered to Treaty 6 on behalf of his people in 1877, I’m here to continue to ensure our treaty is protected, recognized and implemented in the way he taught our people.
I acknowledge the chiefs who have presented before me. Thank you for the opportunity to speak with you today about this bill.
I’m here to inform you that Alexander rejects Bill C-15 in its entirety. Our rejection of the bill does not mean we reject UNDRIP of 2007. As a treaty First Nation, Alexander does not consent to the bill being imposed upon us, because according to our understandings, accepting this bill would be a breach of our adhesion to treaty.
We reject this bill because our ancestors and generations of our elders since 1877 have told us to never forget that our Chief Catchistahwayskum adhered to Treaty 6 with the imperial Crown of Great Britain to allow the Crown’s subjects to co-exist with us peacefully, live in our territory and to use the land to the depth of a plow.
They also told us to never forget that the Royal Proclamation of 1763 recognizes our treaty as an international agreement, that as a nation, we did not give up our sovereignty or our inherent jurisdiction and authority, and we did not cede or surrender our land to the imperial Crown. Our adhesion to treaty puts Alexander in a different position than all other Aboriginal or Indigenous groups, so we cannot be painted with the same brush by Canada.
After the imperial Crown passed on its administrative responsibilities to Canada to fulfill the treaty obligations through the 1867 British North America Act, the Queen’s Law, Canada has continued to move away from their responsibility, which has had detrimental effects on our inherent rights and treaty relationships to this day.
We reject the claims that there has been fulsome consultation on this bill. Some claim that consultation began in 2007, and others claim consultation started when Bill C-262 was introduced. This is simply not true. Alexander has not been properly consulted on this bill or on the previous bill, Bill C-262, because those claims do not reflect our understanding of the intent of the Royal Proclamation of 1763 and do not reflect what is set out by subsection 91(24) of the British North America Act, 1867.
Canada has once again turned a blind eye to treaty First Nations like Alexander that object to this bill. We stand by our position that the nature and the original spirit and intent of our adhesion to Treaty 6 must be honoured, properly recognized and implemented by Canada. Canada has failed to adequately consult with First Nations by relying solely on the Assembly of First Nations in this process, despite the Assembly of First Nations ignoring the chiefs’ resolution from the 2021 Assembly of Treaty Chiefs rejecting the bill in its entirety; the request to engage in a process to respect our treaty and our right to free, prior and informed consent; and Canada refusing to acknowledge that AFN’s own member chiefs did not sanction a mandate for AFN in regard to this bill.
Alexander can only recommend and call upon the committee to reject the bill in its entirety and send a clear message to Canada that section 35 of the Constitution, 1982 is not a starting point for legislative recognition and implementation of Alexander’s adhesion to Treaty 6.
For 30 years, we have repeatedly informed Canada that, according to our elders’ understanding, this must be done on a strict, stand-alone, bilateral treaty process as affirmed by our elders in 1991.
Alexander clarifies that when the Confederacy of Treaty Six recommended in the brief for the committee to work on our real plan for reconciliation, that does not create more dishonour to the Crown and that Alexander understands this means that Canada needs to commit to putting the bilateral process that started in 1995 back on the table.
Lastly, we remind Canada that this must be done in accordance with the nature and original spirit and intent of our Treaty 6 and in a way that respects our treaties and our rights to free, prior and informed consent.
In closing, if you need additional information, please refer to our submitted brief. Thank you for the time, and I look forward to your questions.
The Chair: Thank you, chief.
Arnie Bellis, Chair, Indigenous Resource Network: I’d like to wish everybody who is here a good day. I wasn’t anticipating speaking today because I didn’t get the headset and the equipment. I’m out in Haida Gwaii. However, I did put in a written submission because I didn’t want our voice to be lost.
I don’t know if you folks have been following the news here in B.C. I believe it was the day before yesterday that the remains of 215 children were found in Kamloops at the residential school, so my verbal presentation is going to change slightly based on that. As part of Canadian history, there has to be ownership over that. Also, if one thinks there is not a link between that and what’s going on today, you’re in the wrong room, as simple and as clear as that.
The first thing I noticed was the length of time it took Canada to embrace UNDRIP from the United Nations when other countries did so and took a lead. We are here now, and we are, by and large, embracing the principles of UNDRIP, but we have concerns, as the previous speaker said, on who the government of the day consulted. If there was one mistake made by Canada back in the day with the Indian Act, it was to put us all in the same boat and thinking we’re all the same, yet we’re not. I’m Haida, and the Cree are Cree, and it goes on. So the effort of UNDRIP, although sincere, has a different meaning to different groups. Within that, they have their own consultation process.
That being said, the issue for me is the action plan. To be able to see ourselves clearly in that plan and the execution of that plan, implementation is critical. Words are words, and we’ve heard them all, but it’s the issue of participating and feeling like we’re part of something. That’s essential to anything that might have some success.
I don’t necessarily see UNDRIP as the be-all-end-all for industry, government or First Nations, but I think it’s a critical step to clarifying the relationship among the three.
Also, we Haida make plans for 400 years in advance on a 1,000-year cedar plan. We don’t make plans on the four- or five-year cycle of a politician, and we need to address that because it is there and it is real. I understand that people want to get re-elected and maintain their positions, but in doing that, does that maintain a level society?
We also use the resources for 10,000-plus years, and we want to continue doing that, but nowadays, rolling forward in time, we need investors and we need to have certainty for people who want to invest in territories, villages and communities. We can’t have that in a way that would force us to give up our — I don’t want to say rights, but our existence in our area as human beings. Rights described in our Constitution and numerous court cases are spelled out. Does that necessarily mean that it has changed things? One need only look at the statistics in Canada over the last 20 years and make their own personal judgment on that.
For the opportunity to evolve this relationship with Canada and the industries in front of us, we will accept that challenge in our group. There could be differences and there could be different points of view, but so be it. That’s what makes Canada the country it is. We embrace those things, and we encourage people to be up front so that the spirit of the conversation is done in a way to better us as First Nations and also to make Canada a better place.
With that, I’d like to thank you folks and wish you well and good health.
The Chair: Thank you, Mr. Bellis.
Dale Swampy, President, National Coalition of Chiefs: Thank you for the opportunity to speak with you today on UNDRIP Bill C-15. I am presenting to you today from the traditional territory of the Tsuut’ina Nation near Calgary, Alberta, and the traditional territory of the seven chief First Nations in southern Alberta. Good afternoon, respected senators, chiefs and elders.
My name is Dale Swampy. I am a member of the Samson Cree Nation in Alberta, and I am the President of the National Coalition of Chiefs, or NCC, a coalition of industry-supportive chiefs from across Canada working together to defeat on-reserve poverty through the cooperation, support and full participation in Canada’s natural resource industry. In our last conference, we had 81 chiefs from across Canada. For this year’s conference, on September 19 and 20, we’re hoping to get the Prime Minister and the new AFN leader to speak.
The NCC leadership believes that the Indigenous community in Canada is experiencing a crisis in poverty. Poverty has destroyed most of our family structure, a structure that has made us a proud community. The loss of our family structure has made us reliant on a social welfare society. This society has created the social ills that devastate our people to this day, ills like the lack of education, the lack of employment, the lack of proper health and, of course, the lack of prosperity. We are inundated with teenage suicides, domestic abuse, drug and alcohol abuse, murdered and missing women and girls, abnormally high levels of children in care, and racism.
The NCC believes that poverty within our community has created these social ills, and the only way to cure these ills is to defeat poverty. The only way to defeat poverty is getting our family structure back. The only way to get our family structure back is to get our family leaders employed. The best way to get employment is through our largest industry in Canada, our natural resource industry. The NCC believes that the new UNDRIP legislation will not enhance our ability to defeat poverty — to participate in Canada’s prosperous economy. During the last 150 years, our Indigenous communities have never participated fully in Canada’s economy. We have been sidelined on remote third-world-type reserve economies for far too long. The federal government has tried and failed for decades to bring us out of poverty.
If UNDRIP is truly a form of reconciliation, why doesn’t the federal government follow its own recommendations from their 1996 Royal Commission study on Indigenous peoples and grant First Nations ownership, as they recommended, of 30% of the lands and resources owned by the federal government? This is real, tangible and true reconciliation. Who better to own and effectively manage natural resource development than the Indigenous peoples of Canada? In the 1970s, the United States granted 13 Alaska tribes ownership of millions of acres of land and natural resources in Alaska. Those communities are now the most prosperous Indigenous communities on the planet.
Our federal government promised that UNDRIP was a form of reconciliation, but all it seems to give us is more power to say no to project development and, as a result, say no to prosperity. We need support for rights to move us toward prosperity. Why is it so hard for the government to understand that First Nations have ownership rights to lands and resources in this country?
UNDRIP may be supportive to Indigenous peoples in many ways. However, the legislation that is currently drafted is likely to have negative impacts on the many Indigenous communities that rely on resource development as a source of jobs, business contracts and own-source revenues. Symbolic gestures of reconciliation should not come at the expense of food on the table for Indigenous peoples.
I have spent my professional life in First Nations administration and in the oil and gas industry, and I know first hand what happens when the federal bureaucracy gets in the way of developments. However well-intentioned C-15 is, my discussions with legal experts, industry representatives and investment bankers have persuaded me that it is introducing another layer of uncertainty and risk to development in Indigenous territories. That is because it adds to the confusion about who has the authority to provide or deny consent on behalf of Indigenous people, be it chief and council, hereditary chiefs or small groups of activists. It also implies that a single nation can deny consent — a veto in practice if not in name — on projects that cross dozens of territories, be it pipelines, railroads or electrical transmission lines.
I think the uncertainty in this legislation makes it likely it would be used to delay resource-development projects by groups that oppose extractive and other resource projects under any circumstances. The added uncertainty, hurdles and risk to development on Indigenous territory make it difficult for our nations and businesses to attract investment and, when they can, it is more expensive due to risk premiums. Undermining our own economy is not a recipe for prosperity and self-determination.
The NCC has provided comments on several bills, including the tanker ban. We expect this bill will be passed. We hope that our comments will be taken seriously and that the action plan includes pro-development chiefs like our group and does not focus entirely on AFN recommendations.
Thank you for your time, and I look forward to your questions.
The Chair: Thank you, Mr. Swampy.
I would like to open the meeting to questions, beginning with the sponsor of the bill, Senator LaBoucane-Benson, followed by the critic of the bill, Senator Patterson.
Senator LaBoucane-Benson: I just want to start by saying hello to Chief Arcand. I live 10 minutes away from the Alexander First Nation, and my husband and I go to Sundance in that community every year. I just want to say hi and thank you for being here.
You brought up something really interesting that no one else has talked about yet, which is the bilateral treaty talks that were begun in 1995. I think it would be really helpful for the committee and me to understand what those talks are and what you mean by resuming those talks.
Mr. Arcand Jr.: First of all, we have to go back a very long time. I’m a young man, as you can see.
I think, first of all, the treaty bilateral process was a process that was established between the Confederacy of Treaty Six and Canada to have discussions about treaty relationships and the understanding of treaty. As part of that understanding of treaty, there was an agreement to bring all of the Treaty Six nations together in Alberta to come to an agreement that we would present to Canada and to negotiate, I suppose, with Canada what our thoughts were and what our governments would do working side by side.
Since then, in my view, the Government of Canada has not paid homage to the treaty bilateral process. The confederacy still gets some resources to do that. I know Canada can’t have an agreement with all the First Nations, so the confederacy is an obvious vehicle. I think it’s a way for us to deal with treaty and treaty understanding for all the nations in Canada.
Senator LaBoucane-Benson: Thank you, and that was a quick answer. I didn’t expect that.
What I would ask you then is this: Let’s say the treaty leaders decide to opt out of the UNDRIP action plan. Do you think it’s possible for the government to attend to the treaty tables and do the action plan at the same time or have the treaty talks resumed as part of the action plan? Am I dreaming in Technicolor, or is that possible?
Mr. Arcand Jr.: That is a little bit of a loaded and long question. I believe if Canada totally takes the idea that the treaties and the treaty discussion are done on a bilateral process, where we both sit at the table and come to an understanding, I think there is success that all of our laws and all of our understanding —
The Chair: I’m sorry, chief, but time is expired.
Senator Patterson: Mr. Bellis, you recently gave an interview on CTV News on May 21, saying that Canada needs to do more to recognize Indigenous rights, but that
. . . if it implements UNDRIP poorly we will be the ones that lose. We will be in the ones to suffer the unintended consequences. So they better take the time to get it right. We don’t need any more symbolic gestures.
Mr. Swampy has just repeated that.
You certainly are not alone in calling for us to slow down and improve the bill. Others have called for a complete reset, and others have said it should be improved or amended. What would your response be to those who say that this bill is better than no bill, or as National Chief Bellegarde stated, “Perfection is the enemy of the good?”
Mr. Bellis: I think that Mr. Bellegarde is certainly within his right with whatever opinion he brings forward. However, my concern is that if we’re just rushing it through for the sake of waving it in the air and saying we have UNDRIP, but it’s not an effective tool that changes not just the numbers, per se, but Canada as a society, then we haven’t really done a heck of a lot. It’s not just about investors and investment and that sort of thing. It’s about a society that is in need of not recognizing First Nations’ rights — that’s already there — but also to develop that relationship. And that relationship is critical, not to the world to showcase, but within Canada and within altering systemic racism and all those things that tear us apart as a country. As I said earlier, if we use this as an opportunity to evolve that relationship, we should, but it’s not just for investment and economics. It’s about the whole spectrum of integration with Canada as a country that we are trying to find a place, if you want to call it that. It sounds funny because —
The Chair: I’m sorry, Mr. Bellis. Your time has expired.
Senator Coyle: Thank you so much to all of the witnesses this afternoon.
My question is for Mr. Bellis. I was listening carefully to what you said, and you said words are words, and you spoke about how participation is absolutely essential. What do you think will be critical in order to ensure that trust is built among industry and community partners? What are you hoping that the action plan, which will follow the bill’s passage, hopefully, will clarify? What is your advice in terms of the process for developing the action plan? Thank you.
Mr. Bellis: I think it’s a step-by-step process. I’ve been around for a bit, and I hear so much about trust, but trust is earned. It is earned through time and through action. A relationship is that; it’s a relationship. Relationships ebb and flow. But I would like to see some, for lack of a better word, document on what happens when we do have an impasse and how we solve that impasse.
As for the action plan to educate industry and the investor, I think it’s important that we educate the investor, not people with different interests that might not have our interests at heart, educating investors and that whole world. That’s a real concern of mine because, as I stated earlier, we need investors too. But if people are going to take the time to foil that situation, then they are the agents of the poverty and all the things that aren’t very good right now, as Mr. Swampy clearly outlined. They have to take ownership of that too, and we have to call it for what it is.
In terms of that development of trust, my grandmother said you have to earn that and you have to earn that by being a respectful —
The Chair: I’m sorry, Mr. Bellis. Time expired again.
Senator Francis: My question is for Chief Arcand Jr.
Before I do that, I want to state that my heart goes out to the families and communities learning about the fate of their stolen children. These discoveries are not new but are always horrifying and heartbreaking.
Chief Arcand Jr., my question is this: I understand some nations would prefer to deal with the federal government directly as rights-holders, such as through treaty rights rather than participating in the action plan proposed by Bill C-15. However, this bill does not impose any obligations on nations that prefer a direct approach because involvement in the action plan is voluntary. With this in mind, is it not an overreach to seek to prevent other nations who support the bill from having the option of designing and implementing an action plan to ensure the federal government is held accountable for meeting their minimum human rights standards?
Mr. Arcand Jr.: First of all, let me be clear. In Alexander, we certainly support the idea of UNDRIP and that there should be a discussion about how that gets implemented.
But I think it’s important to understand that the concern is around trust, and particularly in Treaty 6, we had the bilateral process that was begun in 1995, where we were going to look at our understanding of treaty and Canada’s understanding of treaty and come to some agreement. If those things haven’t been maintained and continued, why would we trust another process that would not ensure that Canada’s treaties and obligations Canada has are being put forward by Canada? It’s like you’re asking us to get into another process when the vehicle has already gone. Let’s finish the ones that make sense, and let’s do the things that are much closer to the ground.
Senator Francis: Thank you, chief.
Senator MacDonald: My question will be for Mr. Swampy. Dale, it’s good to see you again, sir. We spent a lot of time two years ago on Bill C-48 and Bill C-69, both in Ottawa and Western Canada. I was always impressed with your knowledge, your determination, and certainly your patience with trying to properly develop your resources. It’s good to have you here.
Mr. Swampy, on December 17, 2020, you sent a letter to the Prime Minister. In your letter you stated:
While the affirmation of Indigenous rights is always welcome, there are implications to this legislation, as currently drafted, that is likely to have negative impacts on the many Indigenous communities that rely on resource development as a source of jobs, business contracts and own source revenues. I do not want to see symbolic gestures of reconciliation come at the expense of food on the table for Indigenous peoples.
Furthermore, the lack of consultation is a flag for Indigenous leaders and communities across Canada. While the NCC was able to meet once with the Minister of Justice, there was an understanding that we would meet further to discuss our issues and concerns. The current comment period is far too short for us to consult with our representatives of Parliament.
Mr. Swampy, will you tell the committee about the response you received from the Prime Minister and whether or not you found it sufficiently addressed the concerns you raised? Thank you.
Mr. Swampy: The response from the Prime Minister was pretty basic. He acknowledged our letter and our issues and concerns regarding the legislation, and he promised that he would have his office and the office of other ministers deal with our problems. Of course, we never received a response after that. We were discouraged by the fact that it was something that never had any real follow-up to it. It’s one of the reasons why we continue to press.
As you know, we’ve struggled with our opposition to Bill C-48 and Bill C-69, and we saw that the government never took any consideration of our issues and concerns. We’re still going to be here, though. We’re still going to fight for it. We get a lot of comments from chiefs asking what our next step is. How do we move forward on being able to access more opportunities and get our people out of poverty? That’s the biggest issue we have to date. All the social ills that we have within our communities are created by poverty, and it’s important for us to make the government understand that all these platitudes and all this false legal jargon will not help our people come to prosperity. We think that’s the most important thing to do.
Senator MacDonald: Great job as always, no question. Thank you.
Senator Stewart Olsen: I’m very grateful to our witnesses for coming here and taking the time to provide us with your viewpoints. It’s always good for legislators to hear from everyone.
Mr. Swampy, Senator Patterson asked a question in the previous panel, and I’m curious as to what your answer would be. We heard from Chief Montour of the Mohawk Council of Kahnawà:ke. He said:
Too often, our legitimate concerns about the perceived deficiencies in the bill . . . 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.
Others have called our concerns about certainty and industry, like you’ve raised here today, fear-mongering. I’d like your response to those who criticize you for raising the concerns that you feel passionately about.
Mr. Swampy: We don’t get as much criticism as we did when we first had pledged our support for the Northern Gateway project. It was the bitumen project that was the biggest, in our minds, the amount of benefits that the First Nations would receive from the project. It was the most informed process that we ever had.
We do make other leaders understand that our energy is focused towards defeating poverty. We think our biggest problem here is not the fact that we are lacking in our Aboriginal titles and rights. The fact is that we’re lacking in our ability to own resources that we owned for tens of thousands of years from before, and our inability to send a message across to the government that we are the people that should have access to those lands. They should understand from their own study in 1996 that it’s logical for us to be able to own at least 30% of the natural resources in this country.
It was done before. This is not unprecedented. It was done for the Alaskan tribes by the U.S. government. But every step we take, we’re always pulled back. When we had the casino licensing for Alberta come through, we thought we were going to be respected as the U.S. tribal nations are respected for casino licences. But the province came in and taxed us 70%. It’s outrageous. All of a sudden our treaty rights are no longer there. Who gave them the authority to be able to take our rights away from us? UNDRIP really doesn’t provide us any additional rights.
I think we’re getting a lot less opposition from people because they understand that our chiefs are fighting for defeating poverty, and defeating poverty is our main focus. In order to defeat poverty, we need to access opportunities in our biggest industry, which is the natural resource industry.
Senator Stewart Olsen: Thank you very much.
Senator Pate: Thank you to all the witnesses.
Mr. Bellis, in a February 2021 joint statement with the First Nations LNG Alliance and the Indian Resource Council, the Indigenous Resource Network stated:
We need Bill C-15 to be amended so it provides practical, not just symbolic, benefits for Indigenous peoples.
I’m curious if you could please expand. You’ve already provided some examples of this absolutely in your testimony, but could you provide additional examples of what practical benefits you think should be at the forefront for us when we’re considering this bill? Thank you.
Mr. Bellis: I think practical benefits are that we have to have the ability to go to the investment world and be treated in a way that we do have something that they can attach themselves to that’s within our territory and that’s our asset. That’s not necessarily a benefit; that’s business. If Canada has recognized all these rights and constitutional rights in court cases, is that possible? That remains to be seen.
We also need to have access. Mr. Swampy talks about poverty. I’d like to talk about development of intellect and how that stopped after contact and the imposing of residential schools, the imposing of segregation into schools. We need to develop our intellect, to move forward and to have those situations tangible and be part of the development of that.
Also, one question that I have to the whole group is: What is Canada? The federal Liberals won an election by 33%. Is that Canada? No. That’s a special interest group within Canada. I want to be clear about that. What is Canada? I keep hearing that statement: Canada, Canada. The representation only represents one third of that.
Thank you very much. Good question.
Senator Anderson: My question is for Chief George Arcand. I have a copy of the Alexander First Nation position respecting Treaty 6, dated November 1991, and it was within the Senate documents. I want to quote a piece:
We now see the efforts of the Queen’s representatives on the constitutional protection of “treaty rights”, the Royal Proclamation of 1763, Federal/Provincial agreements, the Indian Act, and such issues impacting our Treaty No. 6, only to find their interpretations as being the supreme law over any other. These are not our laws; we must not be subjected to or expected to continually adhere to these foreign concepts.
We continually find ourselves in a position of arguing for and justifying our Treaty No. 6 under these laws. As a result, we find these laws to be a complete denial of the recognition of our inherent rights and existence as a Treaty First Nation.
I would like to ask you this: Thirty years later, after you guys wrote these words, this is another concept that’s coming up through Canada. Is there a way through this process to ensure that treaty rights are exercised, respected and affirmed through this process?
Mr. Arcand Jr.: Again, I go back to the concern about going to that table after the bill is passed. We’re already assuming that Canada will set the table. I really believe that we’ve got to come to an understanding as to how that table gets set prior to things being passed. The bilateral process was a way for us to start to do that. Somewhere along the way, things did not continue to grow and things were put aside. Our ability to try to understand each other’s laws and make sure we could co-exist is really the paramount idea. Like everyone else, we want to prosper and we want to be part of everything, but we need to understand that our people and our laws and what we’ve done for years and years and years is just not being totally respected by Canada. I think a table needs to be set, and a table that is supported and respected by all parties.
Senator LaBoucane-Benson: My question is for Mr. Swampy. I was intrigued when you said give communities the right to say yes. I agree with that. I think communities have the right to say yes. I’m looking at the articles in UNDRIP, and Article 3 which is about self-determination and Article 26 is about Indigenous people have the right to the lands, territories and resources they have traditionally owned, occupied and otherwise used or acquired. That doesn’t seem to me that special interest groups can come in and co-opt the traditional owners of the land, co-opt their right to say yes.
My question to you is: How do you want to be engaged? You said you want to be a part. You want to be invited to the action planning. How do you want to be engaged? What’s the message you want to get through within the articles of UNDRIP to make sure that Indigenous communities can say yes?
Mr. Swampy: I think there’s an ability to incorporate through the action plan a stronger version of the ESG implied legislation that corporations that are now enacting.
I’ve always said we’ve had 12,000 self-identified Indigenous people working in the oil and gas industry as of 2015. Now, in 2020, there are 14,000. It’s a 2,000 person increase. At a time when everybody in the oil and gas industry is getting laid off, more Indigenous people are getting hired. This is because of the commitment by the corporations, the natural resource industry, to include First Nations in their development process and major projects.
I think the action plan should incorporate more ability for project proponents to be able to give full participation to Indigenous peoples so that this UNDRIP legislation is not just good for environmentalists and lawyers. Our whole legal system has been developed for Indigenous law across this country, probably the only and biggest Indigenous law group in the world, because of so much uncertainty and ambiguity that arises in our court systems for First Nations.
It’s because we never really get any tangible benefits out of anything. I think we should follow the U.S. law. There has never been a lawsuit in Alaska because of natural resource development, because the First Nations run it. They protect the environment. They protect the water. Canadians generally are great people, good, good people. They want to protect the environment. If you knew all the oil and gas people that I know, you would see that these are real Canadians. They really want to protect the environment. They want to do the best for the communities. They want to do the best for the First Nations. If they have the power under legislation like the action plan can develop, this could be a moving point for us in our ability to defeat poverty. I’m not sure if the action plan has that, because I’ve heard that the three-year action plan has now been reduced to two years. Who knows, when this is passed, maybe it will be reduced to six months. This is the kind of thing we need to act on.
We’ve struggled with Bill C-48 and Bill C-69 after all the opposition and all the trips we made to Ottawa and so forth, but the government at the time didn’t take our issues and concerns seriously. I hope they do this time, because they don’t have a majority government. I hope they take our issues and concerns seriously this time and realize that the AFN doesn’t represent everybody, that the AFN doesn’t have 620 chiefs at their assemblies every year. They’re lucky to get 170, probably with more proxies. It’s got to be communities and organizations like us having a say and getting some real exposure to the kinds of things that are going on in government, especially the action plan that’s going to happen here soon.
Senator LaBoucane-Benson: Thank you. I have a treaty Indian son who works in the industry, so I know exactly what you’re saying. Jobs are good.
Mr. Swampy: I have five of them.
Senator LaBoucane-Benson: Okay, you win.
The Chair: Thank you, Mr. Swampy.
Senator Patterson: Chief Arcand, I’d like to speak more with you about the concept of “manufactured consent” that you referred to in your brief. I’d like to ask you if you think it’s right for the Senate to pass a bill that is progressing through the last stage of the legislative process through what you have described as “manufactured consent.”
Mr. Arcand Jr.: I think, first of all, that’s a really good question.
I believe there’s unfinished business that Canada has with the treaty nations, and part of the bilateral discussion was for us to undertake that discussion. So for us to now sit back and say yes, things should move forward, when there’s unfinished business that needs to be basically managed — our elders tell us, “Why should we get on to a different road when we haven’t finished this road?” We need to finish this road. I think until that road is finished, it’s really tough for us to jump on another road, which is what we always tend to do. My belief is it should not go ahead and we should finish some business first.
Senator Patterson: Thank you for that. I think you’re saying that we could be eroding your bilateral agreement with the Crown, the unfulfilled bilateral agreement, by passing this bill while not demanding the government start again with proper and respectful consultation; is that right?
Mr. Arcand Jr.: Yes. I believe so.
Senator Patterson: Thank you.
The Chair: Thank you, chief.
That exhausts our questions for this panel. The time is now complete. I wish to thank our witnesses for meeting with us today. I wish to thank Chief Arcand Jr., Mr. Bellis and Mr. Swampy.
I wish to remind all the senators here that our next meeting will be on Monday, May 31, at 10 a.m. Ottawa time.
(The committee adjourned.)