THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
OTTAWA, Monday, May 31, 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 may 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 and Anishinabek.
Before we get underway with our hearing, I feel compelled to address the discovery last week of the remains of 215 First Nations children buried on the grounds of a former Kamloops Indian Residential School. We offer our prayers and our deepest sympathies to the families and the community of Tk’emlúps te Secwépemc.
We encourage all Canadians to acknowledge and recognize the tragic and heartbreaking legacy of the Canadian residential school system and its devastating impacts. Today, we mourn with First Nations peoples, their families and communities, and we share their profound sense of loss. Let us now observe a minute’s silence as we honour the memory of the 215 precious souls lost through this senseless and shameful episode in Canadian history.
Thank you, colleagues. 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.
Before we begin our discussion, in order to safeguard the confidentiality of conversations, I remind senators, their staff and committee support staff participating in this meeting that it is their responsibility to ensure 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 am a senator from Nova Scotia, and I’m honoured to be the chair of this committee. I would now like to introduce the other members of the committee who are participating in this meeting. Senator Margaret Dawn Anderson from Northwest Territories, Senator Mary Coyle from Nova Scotia, Senator Josée Forest-Niesing from Ontario, Senator Brian Francis from Prince Edward Island, Senator Nancy J. Hartling from New Brunswick, Senator Patti LaBoucane-Benson from Alberta, Senator Michael L. MacDonald from Nova Scotia, Senator Kim Pate from Ontario, Senator Dennis Glen Patterson from Nunavut, Senator Carolyn Stewart Olsen from New Brunswick, and Senator Scott Tannas from Alberta.
Also joining us today is Senator Mary Jane McCallum from Manitoba, and later today we expect Senator Brent Cotter from Saskatchewan.
Now it is my pleasure to introduce our witnesses for this morning.
I’d like to introduce Dawn Leach, Chair, National Indigenous Economic Development Board; Shannin Metatawabin, Chief Executive Officer of the National Aboriginal Capital Corporation Association; Tabatha Bull, President and Chief Executive Officer of the Canadian Council for Aboriginal Business.
Ms. Madahbee Leach, Mr. Metatawabin and Ms. Bull will provide opening comments 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, and the second question will be asked by the critic of the bill, Senator Patterson.
If other senators have a question, they are asked to use the raise hand feature on Zoom to signal this to the clerk. This will be acknowledged in the Zoom chat. Please note that committee members will be given priority on the list of questioners.
Any written follow-ups to questions should be submitted to the committee clerk no later than May 30, 2021, so in this case, it will be today, May 31.
Committee staff will advise the chair via text when there are 10 seconds remaining for your speaking time of both the witnesses’ introductory remarks and senators’ question and answer time. I will do a 10-second countdown using my hands. When I get to zero, I will let you know the time has expired. Now I would like to turn to Ms. Madahbee Leach for her opening remarks.
Dawn Madahbee Leach, Chair, National Indigenous Economic Development Board: [Indigenous language spoken]
Thank you to the committee members for inviting me here today. As chair of the National Indigenous Economic Development Board, I am grateful for the opportunity to speak with you in support of Bill C-15, implementation of the United Nations Declaration on the Rights of Indigenous Peoples.
Our organization is a ministerial-appointed board established in 1990. The board is comprised of First Nations, Inuit and Métis business and community leaders from across Canada. The NIEDB is mandated to provide strategic policy advice to the federal government on issues related to Indigenous economic development.
The NIEDB’s ongoing work aims to support actionable recommendations for the Government of Canada on how to better support economic development outcomes for Indigenous peoples at local, regional and national levels.
I also have personal experience in running the Waubetek Business Development Corporation since 1988, providing economic and financial services to Indigenous entrepreneurs and First Nations in northeastern Ontario. Waubetek has a record of establishing major regional economic initiatives and over $100 million in investments in Indigenous businesses and economic projects.
It is through these lenses that I would like to explain why Bill C-15 is vitally important for improving Indigenous participation in the Canadian economy. In particular, I would like to push back on claims that have been made around this bill that Indigenous rights recognition will harm economic inclusion. In my view, Indigenous rights recognition will help establish investor certainty through true business partnerships in projects involving rightful Indigenous lands, waters and resources. Such partnerships may include ownership and management positions in resource development, as well as skills training and employment commitments in any agreements. Approaching business relationships with Indigenous peoples in this way — as true partners and rights holders — will significantly reduce the uncertainty in the current system. This is because where there are attempts to push through projects without community engagement and support, the result is often litigation and social unrest, which is to be expected when people’s rights are violated.
I also wish to emphasize that the adoption of Bill C-15 will send a powerful message to corporate Canada, facilitating meaningful Indigenous economic participation in many ways. This bill will help establish cultural norms that uphold Indigenous rights and properly value Indigenous knowledge, including in employment and contract relationships. Bill C-15 will further the social expectation that the private sector answers the Truth and Reconciliation Commission’s Call to Action 92, on Business and Reconciliation. This call urges the corporate sector to ensure that Indigenous peoples have equitable access to jobs, training and educational opportunities in private companies. Call to Action 92 also urges education for corporate management and staff on intercultural competency, conflict resolution, human rights and anti-racism. Bill C-15 will further social and employment market expectations that businesses are contributing to reconciliation, including in moving towards a representative workforce. In all these ways, answering this Call to Action, including with this bill, will lead to greater economic opportunities for Indigenous entrepreneurs, professionals, businesses and communities, and particularly the younger generation.
In this context, it is important to understand that Canada has a history of purposeful economic exclusion and discrimination against Indigenous peoples. As our organization noted in our brief to the House of Commons committee, with my colleagues on the panel today, that history includes: the destruction of traditional economies; the denial of access to rightful lands and resources; the misappropriation of Indigenous wealth by governments and private interests; racist economic restrictions through the Indian Act; the legacy of residential schools, as we have bluntly seen over the past few days, and other assimilationist programs; the inadequate funding of basic community services and infrastructure; and the lack of fair opportunities for quality education, skills development and access to capital.
With Bill C-15, Canada has the opportunity now to turn the page in a game-changing way. This legislation will result in meaningful economic inclusion and greater prosperity for Indigenous peoples and indeed all Canadians, as Indigenous businesses and professionals participate in the economy in a more equitable way. We urge you to pass Bill C-15 as soon as possible. We don’t want to delay it any further. Thank you. Meegwetch.
Shannin Metatawabin, Chief Executive Officer, National Aboriginal Capital Corporation Association: Thank you for this opportunity.
[Indigenous language spoken]
The community I am from is the Fort Albany First Nation of the Mushkegowuk Nation, a place where they are on lockdown because of 27 cases of COVID-19. Before I begin, I acknowledge that I’m taking this call from the traditional territory of the Mi’kmaq, just down the street from the senator.
Thank you for the invitation to speak about Bill C-15. We are grateful for this opportunity because it is the first time that my organization has been called upon to address either this bill or its predecessor, the private member’s Bill C-262. This is not a critique. Indigenous nations are rightfully consulted first and foremost, and the Indigenous legal experts that Parliament has engaged to date have made invaluable contributions.
NACCA represents a national network of 59 Indigenous-led lending institutions providing business loans. For the past 30 years, our members have worked with First Nations, Métis and Inuit governments and individuals to help them achieve their visions of business success. Like many of your witnesses, NACCA supports passage of Bill C-15 without further delay. Despite our regret of the short time frames, it is critical to recognize our Indigenous rights as the framework of our relationship with Canada. Whether in law, policy or programs, the sooner such recognition can happen, the better. But once this bill is passed, we request that government decision makers also engage with Indigenous business organizations. Related to your consideration of this bill, I will give you an example of why.
NACCA is part of a core group of five to six national Indigenous organizations that promote Indigenous business and economies. For the past year and a bit, our core group has met to consider what a national Indigenous economic strategy would look like. Our group reviewed the proposal bill in December 2020, and we were surprised by one aspect of it. Bill C-15 was, and remains, short on references to the economic rights of Indigenous peoples in Canada. This is despite the fact that, not only one, but several Articles of UNDRIP itself. Articles 3, 4, 5, 20 and 23 all refer to various economic aspects of self-determination. Clearly, throughout the declaration’s evolution, its drafters saw economic autonomy and inclusion to be a key element of our rights, yet Bill C-15 hardly mentions these elements.
That is why, in early 2021, our core group drafted an amendment to the bill’s preamble. I have attached the amendment so it can be tabled for your consideration, but I don’t want it to delay the passage of this bill. Notably, our proposed amendment might have addressed the concerns of some critics; that Bill C-15 will impede further development of the Canadian economy. On the contrary. In our view, only the recognition of our economic rights can safeguard Canada’s prosperity.
One court victory after another has affirmed those rights. Our people are now asserting them across the country. The blockades and protests of 2020 demonstrated the economic risks when Indigenous peoples are excluded from decisions and benefits surrounding the use of our lands. In other words, Canada’s future prosperity depends on Indigenous prosperity.
What does this mean? It means we will need to transform the economic framework. In contrast to some of your earlier witnesses, I suggest that the delays of relying solely on impact benefit agreements are over. Why? Whether Bill C-15 passes or not, the UNDRIP itself calls for free, prior and informed consent. In this context, obtaining social licence for major projects will need to go much deeper than IBAs alone.
Please consider our amendment for inclusion in this bill, but please do not delay it. We would like to see Indigenous economic rights and inclusion become integral to the action plan in its early stages. Indigenous self-reliance needs to become a core objective, and the action plan will need to promote the conditions to attain it. Self-reliance becomes all the more crucial in a context where Indigenous Services Canada is seeking to transfer responsibility for major programs to Indigenous governments. Our governments simply will not be able to afford programs that rely on unsustainable spending.
What they need now is smart investments into tools that will equip them and their members to become self-determining.
What concrete tools? Our peoples will need access to our land, not simply to one-off payments for it. We will need to have major equity partnerships. I am thinking on a scale of the recent Clearwater deal in Nova Scotia; the $1 billion deal where Indigenous people were included as part of the deal and as owners. We will need to access the same capital on a large scale that Indigenous businesses have been unable to obtain for far too long.
From Canada, we will need: to strengthen supports; to dismantle the barriers to Indigenous success; supports like the network I represent, which promotes Indigenous business creation by providing our clients with capital and capacity; supports like non-repayable grants or training subsidies for new business owners, or like the federal procurement target of 5% for Indigenous-led businesses, or skills and employment training to empower our people to take on opportunities of their choosing. Investments like these set our peoples up to succeed and reduce the need for unsustainable program spending in the future.
NACCA supports Bill C-15. Its passage into law will mark a crucial step in the right direction, but it is only the first step. The next will be to work out the robust action plan to realize self-reliance. It is well past time to find a way of doing business that affirms our economic rights, and UNDRIP itself does that.
In our national network of Indigenous business leaders, we ourselves are women and men of action. We would be honoured to assist in this transformative task. Meegwetch. Thank you.
The Chair: I would like to thank Mr. Metatawabin for his opening remarks, and I will call upon Ms. Bull for hers.
Tabatha Bull, President and Chief Executive Officer, Canadian Council for Aboriginal Business: Aanii, Tabatha Bull n’indignikaaz, Nipissing n’indoonjibaa, Migizi dodem. Hello. My name is Tabatha Bull. I am from Nipissing First Nation.
As president and CEO of the Canadian Council for Aboriginal Business, or CCAB, I want to thank you, Mr. Chair, and all distinguished members of the committee for the opportunity to provide you with my testimony and to answer any questions.
I’m speaking to you from my home office, and I acknowledge the land as the traditional territory of many nations, including the Mississaugas of the Credit, the Anishinaabe, the Chippewa, the Haudenosaunee and the Wendat peoples.
I feel I cannot begin this morning without acknowledging the grief and revisited trauma that Indigenous people across this country are carrying today. I want to honour the children, their families, the survivors and the generations that have been impacted by residential schools, including so many of my colleagues and friends here today. Meegwetch.
I also want to acknowledge the many Indigenous leaders, including Grand Chief Wilton Littlechild, who poured their hearts into the creation of the United Nations Declaration on the Rights of Indigenous Peoples. They went to the United Nations every year for more than two decades because they saw this international human rights instrument as key to building a new relationship with Canada and to support the rights of Indigenous peoples around the world.
I would like to echo and support what National Chief Perry Bellegarde shared with the House of Commons Standing Committee on Indigenous and Northern Affairs on April 13 of this year, at which time the national chief said:
Bill C-15 provides a principled and pragmatic path forward to ensure that Canada respects and upholds fundamental human rights that have been affirmed and reaffirmed by the international community many times through consensus resolutions of the UN General Assembly.
This does not take away from the immense respect for other Indigenous leaders who have appeared before House and Senate committees, and I acknowledge the areas they have identified for improvement from their regional perspectives. I would ask that these inputs be respectfully considered as opportunities to make this journey of reconciliation as inclusive as possible.
While the preamble of Bill C-15 is notably missing mention of the importance of economic development and the inclusion of Indigenous peoples, we do believe that the bill provides the start of a path forward — one that could support economic reconciliation.
CCAB has worked for close to 40 years to build bridges and support partnerships between non-Indigenous and Indigenous businesses and communities. We have over 1,300 members, both Indigenous and non-Indigenous businesses, who believe in this work. We have heard from a number of them that the passage of Bill C-15 and the development and implementation of the action plan have the potential to provide predictability that supports an efficient business environment, and ensure that promises made to Indigenous businesses and communities are respected and fulfilled.
We were pleased to see the announcement in the recent federal budget of $31.5 million over two years to support the co-development of an action plan with Indigenous partners. It is imperative this work be done collaboratively with Indigenous leaders every step of the way.
This action plan must ensure it provides the means to support the growth of Indigenous private and community-owned businesses. There are a number of articles in UNDRIP by which these could be implemented. For example, the full implementation of Article 36 of UNDRIP would see the Government of Canada take effective measures in the language of the declaration to support Indigenous exporters, which is an area of interest for CCAB and our international and domestic Indigenous partners, as well as our partners in Australia, New Zealand, the United States of America and elsewhere. CCAB would like to welcome the opportunity to contribute to the development and implementation of the action plan with other leading Indigenous organizations and those here today in our joint support of Indigenous business.
The implementation of UNDRIP also presents an opportunity to facilitate additional corporate participation in economic reconciliation. This includes leveraging programs like CCAB’s Progressive Aboriginal Relations program, or PAR, which celebrates its twenty-first anniversary this year. PAR is a certification program that confirms corporate performance and signals to communities that the certified organizations are good business partners, great places to work and committed to prosperity in Indigenous communities.
In closing, I would like to highlight Member of Parliament Jody Wilson-Raybould’s recent observation that C-15 is:
. . . a small step forward that will require significantly more legislative, policy and practice changes for it to truly address our legacy of colonialism.
I agree. I would add that CCAB encourages a productive conversation on this bill that aims to affirm the rights of Indigenous peoples as articulated in the Canadian Constitution and chart a path for inclusive reconciliation. Key amongst these is recognizing that Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions while retaining their right to participate fully if they so choose in the political, economic, social and cultural life of the state. Thank you all for your time. I look forward to your questions. Meegwetch.
The Chair: I would now like to open the meeting for questions. The first question will be from the sponsor of the bill, Senator LaBoucane-Benson, followed by the critic of the bill, Senator Patterson.
Senator LaBoucane-Benson: My question is for Ms. Madahbee Leach. You mentioned in your opening remarks that the racist economic restrictions of the Indian Act need to be addressed. I wonder if you could help the committee understand more about how the Indian Act impedes economic development and what changes you would like to see. Section 5 talks about the revision of laws, so what do we need to revise to make sure that this isn’t Canada’s policy going forward?
Ms. Madahbee Leach: When I think of the Indian Act, I think of the fact that it is very racist and that somebody else determines who our citizens are, for one thing, within this act. The other thing is that our use of our own lands and traditional territories is restricted. I’m thinking of the resources underneath our lands, which are not considered ours according to this legislation. Our land is only as deep as a plow can go. I think that those kinds of parts of the Indian Act restrict our ability to become involved in mineral development in more meaningful ways.
The Indian Act has, over the years has restricted our ability to make our own decisions, laws and bylaws in our own jurisdiction. We’ve always had our own abilities, and we’re exercising those now because after many court cases showing we do have jurisdiction, we’re starting to exercise those rights. We encounter a lot of challenges in doing that because of the Indian Act.
I think any changes to this act need to be Indigenous-led going forward. It can’t be something imposed or done through somebody else’s eyes or lens. It has to be by Indigenous people.
We already have solutions that we feel can be made, and those solutions aren’t going to be detrimental to anyone. They’re only going to enhance Canada’s economy with more meaningful Indigenous inclusion.
Senator LaBoucane-Benson: Thank you. I know that is a big question. There is a lot in the Indian Act.
Ms. Madahbee Leach: Thank you for the question.
Senator Patterson: My question is primarily directed to Mr. Metatawabin.
You’ve said that despite declaration Articles 3, 4, 5, 20 and 23 — and there might be others that refer to economic inclusion — these articles are merely an attachment to the bill. You have noted that Bill C-15 hardly mentions those elements. Ms. Bull has told us that economic inclusion is notably missing from Bill C-15.
I wonder if you could please outline the amendment you have asked us to consider. What is in that amendment you have proposed?
Mr. Metatawabin: Perhaps I could read it:
Whereas implementation of the declaration affirms the importance of Indigenous rights recognition, the business success and seeks to remedy through accelerated economic inclusion the past disadvantages imposed upon Indigenous people, by design, through laws and policies that restrict access to rightful lands and resources, basic needs, quality education, skills development capital and business ownership.
The reason we wanted to include this is to recognize that Indigenous people are faced with multiple barriers. The Indian Act that was just introduced makes us wards of the state.
Those 215 children that were found were a first grave. If we make further investigations, we’ll find multiple graves. Where I’m from, St. Anne’s Indian Residential School was the most notorious for the atrocities against Indigenous children. My dad, who has been in court with Canada trying to get equitable compensation for the survivors, knows that there is another grave in Fort Albany.
We’re wards of the state. We’re not allowed to own a house and use it as equity. We don’t have access to generational wealth. We don’t have access to our lands. Taking down those barriers is important, as is recognizing that we’re starting from scratch here; we don’t even have a gap closed.
By recognizing that we need to close the gaps, we need to increase skills, we need access to capital and, recently you might have heard about NACCA launching the Indigenous Growth Fund — a $150 million growth fund — that will allow investors to invest into a fund that will be used to ensure that Indigenous peoples are able to start a business.
It’s those little things that will change the lens and provide the tools for Indigenous people to become part of prosperity. That is important. Thank you.
Senator Patterson: Thank you.
Senator Coyle: Thank you so much to all of our witnesses this morning.
Ms. Madahbee Leach, you mentioned Canada’s history of purposeful economic exclusion. Mr. Metatawabin, you mentioned how we need to go much further than impact benefit agreements. Ms. Bull, you spoke of the need to build a new relationship and that this bill provides a start of a path forward toward economic reconciliation. You all spoke about the need for a robust action plan and a productive conversation on that, as well as co-development of that action plan.
I would like to ask any one of you what your advice would be on what that productive co-development process would look like, such as who would be involved, and how should this be undertaken? Thank you.
Ms. Bull: I could start on this to say that we are already working as a core group. I work closely with both Shannin and Tabitha, as well as others, on a national Indigenous economic strategy for Canada. We feel it’s important for Indigenous people to hold a pen on these types of initiatives and strategies; it shouldn’t be done for us by someone else. We have the full capacity to do these kinds of things, so we really feel that any changes to laws and policies going forward need to be with the full involvement of Indigenous people, who have the expertise.
When you ask who could be involved, we can go through a whole list of names of people with the expert capacity to do this kind of work. As a matter of fact, we recently found that we have over 400 Indigenous PhDs in the economic field alone, not including the areas of health, and people with their doctorates and/or surgeons with a PhD. So we have the capacity to do this, and we’re already doing it in different areas.
I don’t know if my colleagues want to also comment on that.
Mr. Metatawabin: Because we’re looking through a lens by which we are still considered wards of the state, programs and services are very paternalistic. Government departments set the agenda, create programs and services, and then we have to submit proposals just to access them.
If you give us the pen, like we’re doing right now — we’re taking the initiative to write this economic strategy — then you will see a different way for programs and services to actually have impacts on the ground. There was a study done 20 years ago where every dollar invested into Indigenous business —
The Chair: I’m sorry, Mr. Metatawabin, but the time has expired.
Senator Francis: This question is for all three witnesses.
Last Friday, Mark c of the First Nations Major Projects Coalition was asked about the usefulness of introducing an amendment to the preamble, pointing to the importance of economic stability as a path to sovereignty. He explained that UNDRIP includes 46 articles covering all facets of the rights of Indigenous peoples. As a result, he suggested it would be inappropriate to prioritize some rights above others because all are equally important.
In this context, I ask you the following: Do you agree with Mr. Podlasly? Should we consider the declaration in the bill in particular in the context of more than economic development, and a much debated and feared right to free, prior and informed consent? Isn’t the equal respect for all of the minimum human standards listed in the declaration just as necessary?
The Chair: We will go to Ms. Bull for the first answer.
Ms. Bull: Sure. Thank you.
As we have all said and discussed, we all believe there needs always to be inclusion in discussions about economic prosperity and how we ensure that Indigenous people are part of the economic growth in the country. That is what is missing in the preamble.
However, it’s not a request that it be prioritized over the other portions within the article.
Again, I agree with Dawn and Shannin that we do not want to delay the bill. We would not ask that this preamble be included if it would, in fact, delay the bill.
Ms. Madahbee Leach: Exactly. We really believe this could be part of the action plan — your observations, as well, to take note of that. But we do feel that we don’t want to change anything at this time; we just want to see the bill passed. We feel a lot of good work can take place through co-development going forward.
All aspects need to be addressed in the United Nations declaration. We know there is so much work to do in all areas. We have expertise to help with that.
Mr. Metatawabin: Thank you very much.
Economic development is such an integral area for the lens to be looked through. Indigenous Services Canada has spent less than 1% on economic development initiatives for the past 30 years, which leaves little room to become sustainable and create systems that allow prosperity. This is what we need to ensure is included. We’re having a shift right now. If you look at investing in Indigenous communities, we will have more own-source revenue sources, like the Clearwater deal, if we can just change our lens and invest in the Indigenous community. Thank you.
Senator Francis: Thank you for that.
Senator Hartling: Thank you to the witnesses today. Very interesting conversation on economic development. As you said, economic development is very important to all of us, but particularly to First Nations people. I am thinking that it not only builds financial security, but it builds and empowers people having autonomy and self-confidence.
Looking at the issue, I’m very concerned about women, and women are often heads of households and I’m sure in your community as well. I’m just wondering about the impact of Bill C-15 on women’s economy and if it will affect them and how would that be? Can you talk about what is happening now and what you hope for in the future? Whoever would like to answer, that would be helpful. Thank you.
Ms. Madahbee Leach: Inclusion of women in our economies is already built into everything that we do. I think that of any other financial institutions across Canada, if you look at Indigenous financial institutions, you will see that close to 50% of the clientele are Indigenous women.
So I think that we’re already on that path, and we just really believe that economic inclusion of all of our people is natural. It’s a given. It’s something that we work towards. Many of our leaders in all fields, whether it’s health, education, or business, we have a lot of Indigenous women who are working in that field, but we need to help our younger generations in this regard, to have that hope and have the capacity to help build our economies as well.
Mr. Metatawabin: There was a recognition in the latest budget to assist Indigenous women starting a business; $22 million was identified in the budget to support microlending skills and business-support services. At NACCA, the network of 59 Aboriginal financial institutions processed $3 billion in lending to 50,000 loans; 41% of all our loans are provided to women. We are trying to have a target of 50% women be supported. I think this is just a trajectory of the more you invest, the more prosperity will come out of it. It’s important that the action plan includes economic development as a lens in this bill. Thank you.
Ms. Bull: I will add that we definitely see an increase in Indigenous women-owned businesses, particularly those businesses which are hiring more people, and also which are looking to export, so it is a real growth area. I think if I look to the bill and the other articles in the bill about caring for children, about ensuring that there is culturally appropriate education for children; all of that supporting the children is helping to support women and especially those who are at the head of households.
Senator Hartling: Thank you.
Senator Tannas: Certainly with the discussion we just had about no amendments and looking, as I think Dawn said, towards observations around the economics, I want to run through a list, some of which we have heard from you today, others which I have heard at different times. Essentially, we have had prior discussion — not here — about funding and attention paid and engagement around FPIC preparedness in communities. Who is granting FPIC and how? So that level of certainty on a community by community basis. There didn’t seem to be much appetite for the government to be deciding that, but there needs to be funding and work done at the community level to make sure that’s there.
Economic development and skills training has to be funded. Agenda control. You mentioned this again Dawn, I think, about holding the pen. One that has come up over and over again is local equity ownership, some funding mechanism, particularly for major projects that affect the whole community whereby the community itself has the ability to participate in equity and negotiate for that.
I have a real concern that past injustices that have yielded past benefits to all of Canada and all Canadians, that there will be an attempt to download all past reparations that are owed on future projects. I believe that will actually ensure that there are no future projects, that this will be an empty well if that is the posture that’s taken. So I think there has to be funding that goes to make sure that all of this happens and that it isn’t put into the hands of somebody who today is trying to do something for the future.
Any issues with anything I have said there? Anything you want to add? Am I missing anything?
Ms. Madahbee Leach: I wanted to say, first of all, that when you look at free, prior and informed consent, to me the emphasis needs to be on “informed.” One of the things that I have been focused on is building that capacity. If you look at the resource development sector, we have been working on developing capacity and understanding because we know that there are minerals that we need to survive, and once our people fully understand that, I think that is really critical for that. When we can make informed decisions, that’s the most important thing, so helping Indigenous people make informed decisions is probably what needs to be done and focused on foremost.
Senator Tannas: I’ll come back and ask again. I’m out of time. I’ll come back second round.
Senator Anderson: [Another language spoken] My question is for Ms. Madahbee Leach. Some concerns have been expressed by land claim and treaty holders that this bill is not consistent, contradictory or heightens concerns with their land claims or should not, or express that their original treaties should be honoured without Bill C-15.
When you looked at this bill in terms of industry, did you look at it in terms of the existing treaties, land claim holders, modern treaties and self-government agreements? If so, can you share your thoughts on the interplay of the legislation with treaties, land claims, modern treaties and self-government agreements?
Ms. Madahbee Leach: To me, passing Bill C-15 would help enhance the whole process in terms of recognizing land claims that are there already. That again we would be involved in helping to streamline those processes. Again, talking about co-development. I think passing Bill C-15 — which recognizes and acknowledges our treaty rights, our Aboriginal title and our Aboriginal rights — I think is really critical. It’s built in here. It’s something that needs to be recognized.
We know that, going forward, we have lots of outstanding claims, but the information is there that proves that many of these claims are absolutely valid, and to me, I do not see how Bill C-15 would limit that. I think that it will enhance, in terms of co-development of processes and policies going forward, and changing some of the laws and requirements so that we can work together and make sure we have more certainty when it comes to land claims and land matters.
Senator Anderson: Thank you. If there is time left, can Shannin Metatawabin please answer the same question?
Mr. Metatawabin: One thing that needs to be recognized is, first and foremost, treaties will never not be regarded as the highest form of law between the settler and the Indigenous communities. This is the highest form of law that we have between our two nations.
This new bill that is entrenching it into our government process is leading the world in a process. It’s just the first step. We want to make sure that we are covering off what we need because then we start developing and taking the steps that align everything together. I agree that we need to move this.
The Chair: Thank you.
Senator Forest-Niesing: Thank you to all the witnesses for being with us. Mr. Metatawabin, I don’t know if you recall, but I had the pleasure of dining in celebration of your father’s honorary doctorate conferred by the University of Sudbury some years ago in Moose Factory, and enjoyed that dinner with your entire beautiful family.
The question I have for you follows a bit on the same theme broached by Senator Tannas. This may give you, Mr. Metatawabin, an opportunity to respond.
Senator Tannas’s question was focused on funding. I will add my own component to that. We have heard from several groups, and the Indigenous population is incredibly diverse, and we fully appreciate that.
In the process of negotiating and ensuring that we have at the table, not only those that need to be there, but those who are concerned about not feeling bound by or properly represented by some who may be at that table, in practical terms, how would you see that evolving? Have you encountered it to date in your work in economic development? How do you see it on a go-forward basis? I’ll invite you to answer first. If there is time left, other witnesses are welcome to chime in. Thank you.
Mr. Metatawabin: Thank you for that question. I totally agree with Senator Tannas and his concerns about the uncertainty that Indigenous participation might bring to investment into Canada. We have seen foreign investment decrease by 50%. I did some research a few years ago and saw that uncertainty was scaring off everybody.
I used to work for Anglo-American. They stopped investing in Canada because of this uncertainty. The faster we get around this — free, prior and informed consent — the more prosperity will come back to Canada.
As you heard in my welcoming remarks, future prosperity for Canada will not exist without Indigenous prosperity being considered. There was $9 billion spent in 1996 on Indigenous spending and $17 billion last year. It will be $40 billion before you know it. It’s time to address more economic investment because less than 1% of that entire budget I just mentioned goes to economic planning and organizations like ours that assist our people. So if we can invest in our people — maybe like a 5% procurement spend — we look at 5% spend for Indigenous programs. Thank you.
Senator McCallum: Thank you. First, I would like to make a comment about free, prior and informed consent. If Indigenous people had not been forced to put their children in residential schools, and if they had free, prior and informed consent, we would not have ended up with the deaths we did at that residential school and in other residential schools. I know of other students that have come to me.
When you look at free, prior and informed consent and the ability to veto; industry has used that to undermine economic development going forward.
In 1995, the inherent right of self-government stated that it has to operate within the framework of the Canadian Constitution and:
. . . does not include a right of sovereignty in the international law sense, and will not result in sovereign independent Aboriginal nation states.
This would displace the existing treaties and affect self-determination. The policy also involves the provinces and territories in negotiations and this goes against treaty negotiations as understood by First Nations, which is that treaties were based on a bilateral First Nations, federal and Crown relationship.
The federal policy on self-government is that Indigenous self-government must be consistent with federal and provincial laws, keeping Indigenous self-government within Canada’s legal framework and subordinate to other levels of government.
I totally agree with the three speakers and where they are going with this and where their hearts are, but unfortunately, as a former student of a residential school for 11 years, and having been under oppression all my life, I do not believe that the government will act honourably again. Will this impede the directions that you’re taking? How will this make industry more accountable? Thank you.
Ms. Madahbee Leach: I feel that industry is starting to work very closely — you probably heard from the First Nations Major Project Coalition on how many agreements there are in Canada already with companies that exist. I think this will ensure that it’s always a consideration going forward.
We’re the people who live on these lands. There are billions of dollars of resources being taken from these lands.
Senator LaBoucane-Benson: I would like to give my question to Senator Tannas to finish up that piece that he was talking about. Perhaps Senator Tannas can quickly re-ask the question and we can get an answer.
Senator Tannas: Thank you very much, Senator LaBoucane-Benson.
I gave you a laundry list of what we have heard. Was there anything on there that you took issue with or felt was missing, Shannin and Tabatha?
Mr. Metatawabin: To your concern about including Indigenous people in the prosperity of Canada, I think there are three steps where we can help. We’re here for solutions.
IBAs are the minimum standard for Indigenous communities to be recognized for the impact directly. What we’re missing is revenue share with the taxation, to recognize that the resources in the ground are Indigenous. For equity share in the project itself, we need a fund so that Indigenous people can be owners. With those three steps, I think Indigenous people will participate more wholesomely, we can open up Canada to investment, and Indigenous people will have prosperity. Thank you.
Senator Tannas: Thank you. Tabatha?
Ms. Bull: To build on what Dawn said, we see a number of incredible partnerships happening across the country. The — project will eventually be owned by the communities. I think funding — regardless of UNDRIP and Bill C-15 — for communities to properly participate in conversations and in partnerships is definitely needed through capacity-building programs.
The other thing regarding FPIC is that it is an obligation on behalf of the corporations to ensure that they are informing and working with the communities. So often we put that weight and that bearing on the community.
In my case, I think FPIC is not a veto; it’s an obligation on behalf of the resource companies. If they don’t get approval, that’s a failure on the resource company, not on the community not willing to partner.
Senator Tannas: It’s a failure on generations of resource companies. My worry is that if we download all of that on future projects, we’ll guarantee no future projects. So what is the point?
Canada has benefitted through injustice, and part of reconciliation, I think, should be reparations, and reparations should be investments made in bringing the communities up to a level where they are equal and can provide, as somebody mentioned, informed consent. But I take your point and thank you all for this.
Mr. Metatawabin: I think one of the major problems with this is that the federal government has a responsibility to the communities, through the Indian Act, with the relationship and the treaties that Indigenous communities look to the federal government for that responsibility to ensure that everything happens that way. But the federal government downloaded all of land to the provinces. The federal government and the provinces need to work this out so that future prosperity can roll out. Thank you.
The Chair: Thank you very much. The time for this panel is now complete. I wish to thank our witnesses for meeting with us today. I wish to thank Ms. Madahbee Leach, Mr. Metatawabin and Ms. Bull.
Senators, it gives me great pleasure to welcome our next panel of guests this morning. I wish to welcome Mark Sevestre, Senior Advisor and Founding Member, National Aboriginal Trust Officers Association, NATOA; and accompanying him is Katherine Wheatley, Manager. I would like to welcome Shannon Joseph, Vice-President, Government Relations and Indigenous Affairs for the Canadian Association of Petroleum Producers; and Brian Schmidt, President and Chief Executive Officer of Tamarack Valley Energy.
Mr. Sevestre, Ms. Joseph and Mr. Schmidt will provide opening remarks of approximately six minutes each, which will be followed by a question-and-answer session for approximately three minutes per senator.
The first question will be asked by the sponsor of the bill, Senator LaBoucane-Benson, and the second question will be asked by the critic of the bill, Senator Patterson.
If other senators have a question, they are asked to use the raise hand feature on Zoom to signal this to the clerk. This will be acknowledged in the Zoom chat. Please note that committee members will be given priority on the list of questioners. Any written follow-ups to questions should be submitted to the committee clerk no later than May 31, 2021; that’s today.
Committee staff will advise me through texts 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 we get to zero, I will let you know that time has expired.
I wish now to invite Mr. Sevestre to make his opening remarks.
Mark Sevestre, Senior Advisor and Founding Member, National Aboriginal Trust Officers Association (NATOA), Reconciliation and Responsible Investment Initiative: Se:ko. Good morning, senators. It’s an honour to provide input for your consideration today. I am a Mohawk member of the Six Nations of the Grand River First Nation, Senior Advisor and Founding Member of the National Aboriginal Trust Officers Association and the General Manager of the Mississaugas of the Credit First Nation Community Trust.
With me today is Katie Wheatley, Manager of the Reconciliation and Responsible Investment Initiative, or RRII, and the Shareholder Association for Research and Education, or SHARE.
The Reconciliation and Responsible Investment Initiative is a partnership between NATOA and SHARE. NATOA is a charitable organization committed to providing Indigenous peoples with the resources and information that will help them efficiently create, manage and operate trusts, as a means to ensure that future generations can benefit from the assets under management today.
SHARE is a non-profit organization dedicated to mobilizing investor leadership for sustainable, inclusive and productive economy. Together, through RRII, we work with Indigenous and non-Indigenous investors to foster a financial system that empowers Indigenous perspectives, recognizes the role of community values in investment decision making, creates positive economic outcomes for Indigenous peoples and contributes to protecting Indigenous rights and title.
Our approach is grounded in the Truth and Reconciliation Commission’s principles of reconciliation and Call to Action 92, which calls upon the corporate sector in Canada to adopt the United Nations Declaration on the Rights of Indigenous Peoples as a reconciliation framework to apply its principles, norms and standards to corporate policy and core activities.
We applaud the Government of Canada’s introduction of Bill C-15 to establish a framework for the domestic implementation of the UN declaration and to ensure Canadian laws are consistent with the declaration. Bill C-15 is critical in raising the minimum standards of Indigenous rights in Canada. Its implementation would also support reconciliation efforts broadly by adding to the existing expectations of all economic actors to support the participation and meaningful engagement of Indigenous peoples in business opportunities.
We work with Canadian institutional investors, including Indigenous trusts, to embed Indigenous rights and commitments to reconciliation across capital markets and within Canada’s corporate sector. One major aspect of our work centres upon shareholder engagement through SHARE’s engagement program, today representing over $70 billion in assets under management. We have engaged with over 50 Canadian and international companies to secure corporate commitments to Indigenous rights and reconciliation in the past few years. As a result, over a dozen companies have taken meaningful steps to respond to Call to Action 92, for instance, by incorporating Indigenous rights into their human rights policy, by establishing regular public disclosures on Indigenous employment and procurement, and by committing to education for management staff on Indigenous rights and history.
Katherine Wheatley, Manager, Reconciliation and Responsible Investment Initiative: Currently, companies in Canada are at very different stages in developing policies and practices that align with UNDRIP. Public commitments to the UN declaration — and free, prior and informed consent specifically — have increased in recent years, although companies that have made such disclosures are in the minority.
From our engagement work, we can also affirm that companies across the TSX are actively soliciting input and guidance on Indigenous rights due diligence. Investors recognize that progressive Indigenous relations and rights recognition are critical for business success. Failure to conduct sufficient due diligence in relation to this can result in financial losses and other material costs. Investor confidence is heightened where companies have made clear commitments to the UN declaration, as engaging productivity with potentially impacted rights holders provides legal and regulatory certainty.
Thus, we recommend that the action plan to implement Bill C-15 include consideration of the expectations of companies headquartered and/or operating within Canada in upholding the UN declaration, as well as their investors. Further disclosure of potential impacts to rights and related due diligence measures are needed, and there is a dearth of domestic guidance on this. Particular attention should be played to the roles of companies as non-state actors.
Domestic implementation of the UN declaration requires that companies play an active role in upholding Indigenous rights. In order to raise the standard of corporate governance in relation to rights, further guidance and disclosure requirements are needed. Indigenous rights considerations are not fully embedded into voluntary sustainability accounting and reporting standards, nor has sufficient guidance been laid out in leading global business and human rights frameworks.
Spurring widespread adoption of Indigenous rights policies, due diligence and disclosures among Canadian companies, through national-level guidance, would help improve outcomes for communities, investors and businesses alike, and ensure that effective complaint and mitigation measures are adopted to manage rights-based conflicts that may arise.
For Bill C-15 to be successfully implemented, we submit that the roles of companies and those that finance them in upholding UNDRIP should be clarified. Clear expectations developed in consultation with Indigenous peoples will help foster business and investment certainty and facilitate Indigenous economic inclusion. Bill C-15 provides us with an opportunity to further embed Indigenous rights across Canadian capital markets and advance reconciliation.
The Chair: Thank you, Ms. Wheatley.
I’d now like to turn to Ms. Joseph for her opening remarks.
Shannon Joseph, Vice-President, Government Relations and Indigenous Affairs, Canadian Association of Petroleum Producers: Good morning. Thank you very much to the committee for the opportunity to speak to you today. I would also like to acknowledge that today I’m speaking to you from the traditional territory of the Algonquin Anishnaabeg peoples.
CAPP represents companies, large and small, that explore for, develop and produce natural gas and crude oil throughout Canada.
Since 2016, our sector has endorsed the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, as a framework for reconciliation in Canada, and supports the implementation of its principles in a manner consistent with the Canadian Constitution and law.
CAPP and its members have worked hard to be constructive partners in reconciliation. Some examples of our ongoing work and relationships include procurement. In 2017 through 2019, aggregate procurement from Indigenous-owned businesses by oil sands companies was $5.9 billion. In 2019, that represented 11% of total procurement by oil sands companies. That’s more than any other industry in Canada or the federal government.
In the area of employment, we are one of the largest employers of Indigenous peoples, creating high-paying job opportunities locally. For the Fort McKay First Nation, as an example, involvement in the oil sands has translated into a median income of over $61,000 in 2016, which exceeds the median income of every Canadian province except Alberta.
In the area of sustainable communities, our efforts range from housing initiatives to environmental monitoring programs to standing discussion forums in our operating areas. The sector works closely with Indigenous communities to support locally identified priorities and to incorporate Indigenous knowledge into our projects.
We support an approach to UNDRIP implementation that preserves and enhances economic, social and environmental benefits for Indigenous peoples and communities. Resource development has been one of the strongest paths for building Indigenous prosperity in Canada, and investor certainty plays an important part of this.
Some witnesses to this committee have suggested that Bill C-15 will create greater certainty for everyone, including industry and investors. It is our view that amendments to Bill C-15 are needed if it is to provide that certainty, and we have submitted proposed amendments to the committee for consideration to support success in that area.
Over the last two decades, a great deal of progress has been made to develop well-understood, principled and flexible approaches to project engagement that enable solutions that are mutually beneficial for Indigenous rights holders and industry proponents. However, the experiences of our companies working in the current legal context suggest that there is confusion and a range of expectations on what UNDRIP means in practice, including for existing statutes like the Impact Assessment Act. Government officials, Indigenous rights holders and companies find themselves muddling through with unclear guidance. For example, consultation instructions from federal officials — which now include requirements related to UNDRIP, including concepts around consent and free, prior and informed consent — seem to have become completely disconnected from the principles established by the courts. For a given project, the number of Indigenous communities that CAPP member companies have been instructed to consult has grown from 5 or 6, with whom they have had long-standing relationships, to over 35. Many of the new communities identified have no known rights in the project area. Their involvement in the consultation without a grounding in the concepts of strength of claim or impact to rights leaves everyone uncertain about the process. It also means there are fewer resources available to each community, and this may lead to conflict among rights-bearing communities as opportunities are spread thin.
We support the goal of facilitating and expanding Indigenous involvement and resource development as part of economic reconciliation. But legislation that is ambiguous will make this participation more difficult, and it will lead investors to move their capital to environments that enable all parties to understand their obligations and how to fulfill them adequately and in a timely manner.
Our proposed amendments seek to address areas of uncertainty and to bring greater clarity and to support a solid starting point for UNDRIP implementation in Canada. I would summarize them as follows.
First, like other speakers this morning, we support the inclusion of language in the bill that strengthens the right of Indigenous people to economic development.
Second, we want to see clarification that Bill C-15 does not have the effect of immediately amending domestic federal laws related to Indigenous rights but, rather, creates a process for change.
Third is defining free, prior and informed consent for the Canadian context. In our understanding, FPIC is a process, not an outcome. Many, including Minister Lametti, have said it is not a veto over government decision making. Our proposed definition reflects this and leverages the principles developed by the courts.
Finally, we need to ensure that the action plan is the main vehicle by which to make UNDRIP practical in Canada, co-developed with Indigenous peoples and with the intention that industry would be able to engage in that dialogue where appropriate. The action plan process should be adequately resourced and create clear accountabilities.
I want to close by reiterating the commitment of the upstream oil and gas industry to playing our role in reconciliation. The study of Bill C-15 should not be framed as a debate between those who support Indigenous rights and those who don’t. We all support Indigenous rights.
We have also experienced, along with our Indigenous partners, the lost opportunities that a lack of clarity brings. This committee has an opportunity now to make clear the path ahead of us, and I would encourage the committee to make the targeted but important changes to Bill C-15 to help us move forward together in reconciliation and in prosperity. Thank you.
The Chair: Thank you, Ms. Joseph.
I now invite Mr. Schmidt to make his opening remarks.
Brian Schmidt, President and Chief Executive Officer, Tamarack Valley Energy Ltd.: Thank you for the opportunity to speak to your committee today. I would like to acknowledge I am speaking from the traditional territories of the people of Treaty 7 and the Métis Nation of Alberta, Region 3.
My name is Brian Schmidt. I am the CEO of Tamarack Valley Energy, an intermediate oil and gas producer with light oil plays in Alberta and Saskatchewan.
I’m also the chair of the Canadian Association of Petroleum Producers’ policy group on Indigenous affairs and a board adviser with Indian Oil and Gas Canada, so I devote a fair bit of my time to make sure relations between the oil and gas industry and Indigenous nations are positive and mutually beneficial.
I have also been in business with the Kainai people for a couple of decades. I was as an operator of oil and gas rigs on reserve land of the Blood Tribe. I’m proud to be honoured, a few years ago, with the title of honorary chief of the Kainai.
I am not here today to ask you to choose between our industry’s interests or Indigenous people’s interests. I’m here to say that I firmly believe that we have the same interests in this matter. We want Indigenous rights to be protected, but we also want to have a healthy, prosperous oil and gas natural resource sector so that we can all benefit economically. My Indigenous colleagues want that too, and I know you heard from some of them on Friday.
While my company has formally accepted the principles of UNDRIP and supports UNDRIP, I want to convey to you that Bill C-15 as proposed will create more uncertainty for our industry and for resource development as a whole in Canada. This will mean that we cannot attract investment from the capital markets and that good projects worth billions of dollars will not proceed.
Yes, this will harm the oil and gas sector and we want to avoid that, but it will also harm the economic prospects of Canada and Canadians as a whole. I think, as much as anyone, it will harm the Indigenous communities who rely on or see resource development as an important means of creating jobs and businesses and own-source revenues. I think there may be the impression that we are alarmist or hyperbolic when we say things like that. It’s been called fear mongering. I read an op-ed in the Toronto Star this weekend that said that Bill C-15 will actually create economic certainty and that opponents of Bill C-15 are against free, prior and informed consent. These are all mischaracterizations of our position.
When every industry association — hydro, mining, electricity, forestry, as well as petroleum — tells you that a piece of legislation is going to have negative implications for investment, at least listen to our concerns.
We are already facing the impacts of regulatory uncertainty. The Financial Post calculated, in the last five years, we’ve had $150 billion worth of energy projects abandoned or suspended because investors wouldn’t take the risk of financing them.
We’ve seen investors choose Siberia over British Columbia for LNG development because they thought Russia was a safer bet for their money than Canada. We’ve seen Warren Buffett pull out of $9 billion LNG project in Quebec because of concerns over railway blockades and infrastructure challenges. We’ve lost $17 billion due to price differentials with crude prices because we didn’t have enough pipeline capacity to get our product to market. We’ve seen the $20 billion Frontier oil sands suspended — one the best projects I’ve seen in terms of Indigenous support and environmental protection — with the CEO noting that investors were looking for jurisdictions that had reconciled their environmental, social and resource development goals, but Canada had not yet done that. Just this month, we saw Woodside Petroleum announce their plans to leave Kitimat LNG, which is a huge blow to the 16 First Nations and their limited partnership involved in the project.
Bill C-15 has not caused these problems, but I strongly believe it will exacerbate them. I say that as someone who has gone to New York and Houston to meet with investors where I hear these concerns first-hand. It’s not enough to have Indigenous consent; we’ve had that on projects and yet they were still cancelled. The problem is simply that it is unclear in many cases what is needed to get regulatory approval in Canada and how long it will take. Money is moving to jurisdictions where this is clear.
What are our industry needs is for Bill C-15 to be drafted in such a way that it doesn’t add more uncertainty and risk to investment, and that’s all we’re asking for here. Make it easier for us to do business with Indigenous communities not harder. CAPP has made some specific amendments that have been proposed in good faith to improve Bill C-15. A few edited paragraphs would save this country thousands of jobs and billions of investment dollars. If the government fails to do this work of clarifying the legislation, we will watch good projects pass us by while we wait for the courts to do our legislators’ work for them. This benefits no one, least of all Indigenous communities involved with resource development.
The Chair: Thank you, Mr. Schmidt.
Senator LaBoucane-Benson: My question is for Mark Sevestre. The question is about the research that RRII has completed with regard to the barriers to bringing Indigenous people to the table as equal partners.
We’ve heard a lot of witnesses talk about the successes that have been had in Canada in bringing Indigenous partners to the table, and certainly Mr. Schmidt just talked about Indigenous partners. What are the barriers to bringing Indigenous people to the table as equal partners and how would UNDRIP address those barriers?
Mr. Sevestre: Thank you for the question and I think from our perspective we are coming at it as the general manager of the Mississaugas of the Credit Community Trust. We are investors ourselves. We are discovering our voice in terms of being shareholders and having a voice in companies that way. So I think that’s one of the methods that way are utilizing and advocating with many of our members through the NATOA network of utilizing that voice and coming to the table in that way as shareholders. At this point in 2021, we are generally discovering that for the first time, so I think that is a method that’s being awakened.
The reason we started NATOA in the first place is many of our communities were dealing with investment managers, we’re trying to get them to deal with the appropriate companies, and they turned over that responsibility to their managers. So our voice within the investment and capital markets was not being heard. So I think for us that’s a huge barrier that we are overcoming, just to get our companies to understand the importance of the Indigenous rights and issues within developing policy within their companies to engage with our communities in a proper way.
Senator LaBoucane-Benson: Thank you for that answer.
Senator Patterson: I would like to thank the witnesses for their compelling testimony. My question is for Ms. Joseph.
There are some who assert that concerns that Bill C-15 may usher in uncertainty with respect to future development are alarmist. Some note that similar concerns were raised with respect to Bill C-69, passed during the previous Parliament, and yet they would argue that the sky has not appeared to have fallen.
In your view, is it alarmist or fear mongering to suggest that investor confidence might be impacted by the passage of Bill C-15, and that uncertainty might be the result? Thank you.
Ms. Joseph: Thank you, senator. I think it is important for committee members to keep in mind that investment decisions and loss of investment are largely invisible to most Canadians, and I would say to many parliamentarians. These decisions just get made behind closed doors. People decide to take their money to Norway or somewhere else, and since Bill C-69 we have not seen any major new projects come forward. So having certainty in all of our regulatory framework is important because it has an effect, and the effect is billions of dollars not coming here and going somewhere else.
There are, as we have suggested, opportunities to bring clarity to Bill C-15 that will help the environment overall, and there are many challenges in the Canadian environment.
Senator Patterson: Thank you. If greater uncertainty results from Bill C-15, what recourse options or alternatives will there be for your First Nation partner communities?
Ms. Joseph: Well, I’ll speak to that briefly but maybe I would suggest that Mr. Schmidt could provide more detail.
If we think of an instance like Northern Gateway where the project was cancelled, many of the members of the Aboriginal Equity Partners — and there were Indigenous equity holders in that project — did not have recourse and their recourse was telling their story. When these opportunities go away, they leave the places where the people are, where the resources are; they go elsewhere and there isn’t anyone to appeal to, to change these types of decisions.
I’ll see if Mr. Schmidt has any further comment.
Mr. Schmidt: Certainly, senator. Thank you for that question. I can tell you this pretty specifically because of my work with Indian Oil and Gas Canada and the Indian Resource Council. Because we couldn’t get pipelines built here in Canada, a couple of dozen nations with oil and gas production were losing tens of millions of dollars in deferentials. That discount is what we see when we sell Canadian oil or Western Canadian Select — in comparison, American oil or West Texas Intermediate — because our transportation costs are so high and our access to market is so much lower.
The Chair: I’m sorry, Mr. Schmidt, your time has expired.
Senator Stewart Olsen: Thank you all for being with us today. Most interesting. My question will be for Mr. Schmidt.
Mr. Schmidt, Ms. Joseph noted that investor confidence might be impacted by the passage Bill C-15, but is it not right that businesses will need to become accustomed to Bill C-15? As an owner and operator within Canada’s energy sector, you still have to operate in Canada. In doing so, Bill C-15 simply means that you will have to accommodate yourself to whatever reality Bill C-15 ushers in.
Do you see businesses as having any option in this regard and how will this bill impact partnership building that your industry may already be engaged in?
Mr. Schmidt: That’s what I’m trying to convey here. There are costs to unclear processes and there is cost to uncertainty.
Canada has a good product. We have good proximity to Asian markets. We have a lot of competitive advantages. But our regulatory process and our policies governing resource development are absolutely deterring investment. We’ve already seen big corporations pull out of Canada — Shell, Total, BP — and that’s what happened with Chevron and partner Woodside in Kitimat. Companies aren’t abandoning LNG — they have options — they’re moving their money into LNG in Australia, Senegal and Siberia because they can better predict costs and the risks, and because they can start to get a return on their investment years before they can in Canada. Chevron can’t even sell its stake in Kitimat LNG after they wrote off $2.2 billion on the project. No one will start new projects to invest in Canada. There were 20 LNG projects being proposed in B.C. and only one of them has made it to construction.
Cancellations of projects cause harm to Indigenous people through cancelled equity ownership, impact benefit agreements cancelled, destruction of Indigenous businesses, unemployment rising and ensuring poverty and despair continues. Thank you.
Senator Stewart Olsen: Thank you, Mr. Schmidt.
Senator Francis: This question is for Ms. Wheatley. We have heard some suggest that free, prior and informed consent will create uncertainty and thereby threaten the economy and society. Given that extensive guidelines for the interpretation and application of this process exist, and that various governments, industries and Indigenous communities have successfully been able to put it into practice, I wonder whether these claims come from a place of caution and even fear of the kind of transformative change needed for reconciliation to happen.
So I wanted to ask you the following: Is it true that the fulfillment of the right to free, prior and informed consent leads to more or less predictability and certainty for all parties? Should companies and investors be fearful of conducting human rights due diligence in the design and implementation of projects that may interfere with the traditional lands and resources of Indigenous peoples?
Ms. Wheatley: Thank you very much for your question, Senator. I would start by saying that it’s important to note there is an emergent standard of practice. A fair number of companies have already made voluntary commitments and disclosures to respect and uphold UNDRIP and free, prior and informed consent, specifically. Within the material sector, recent research we did showed about 30% of companies have made commitments to free, prior and informed consent, and about a quarter of companies in the material sector we studied in recent years have made explicit commitments to the UN declaration. So we are seeing that this transformative change is already underway and that companies are recognizing that when communities are on board, when they have productive relationships and when they are engaging in meaningful consultation and engagement, projects are moving forward.
There are a few recent examples that are clear cases of that. For instance, Alberta Powerline where there were, I believe, over 30 communities consulted between the McMurray area, and the Calgary region, I believe, is a prime example of a linear infrastructure project that could have been very complicated in consultation but was effectively overseen, and communities have come to provide consent and be on board with that development.
The case of Woodfibre with the Squamish Nation in the Vancouver area is the same in that there has been effective due diligence. I think it’s important to recognize that on other matters of human and labour rights, health, security and environmental violations, companies have been compelled by states to help build effective due diligence plans and to report back on this. This is something that we could see implemented when it comes to Indigenous rights as well.
Mr. Sevestre: I would agree with everything that Katie said.
Senator Francis: Good answer. Thank you, chair.
Senator Coyle: Thank you very much to all of our witnesses here this morning. Ms. Joseph and Mr. Schmidt, you both mentioned concerns about investor certainty — as you know, we have heard from many others — related both to this bill, C-15, and also our existing pre-bill C-15, a regulatory regime.
I’m sure the recent IEA statements are also causing concern to the industry. That’s absolutely understandable. You asked us to take your concerns seriously and not to call this fear mongering. It is our job to take your concerns seriously, so I want to assure you that we on this committee are doing that.
Now, of course, there is a chance — and probably a fairly good chance — this bill may be passed into law without the amendments that you would like to see. I know, Mr. Schmidt, that in your statement to the House of Commons you said that the action plan process should be adequately resourced and create clear accountabilities. The federal government, as you know, has allocated funds in the 2021 budget for this process.
Could you please elaborate on your concerns regarding both funding and the accountability component to be developed through the action plan? We would like to hear about that.
Mr. Schmidt: Certainly. What industry and investment are asking for is accountability to make sure all the uncertain items are cleared up as fast as possible. That will restore investor confidence; that they know what they are up against when they propose a project.
Shannon, can you please pick it up from there on the specifics?
Ms. Joseph: In terms of the resource standpoint, we think it’s important — and we have experience in engaging in consultation early and often — that these processes need to be adequately resourced to ensure that all partners, Indigenous participants and others, can fully engage. That is what our concern around resourcing is about, and we were pleased to see those resources in the budget.
On accountability, some of what we have included in our amendments speak to measuring improvements to Indigenous people’s economic and social conditions through sustainable development, in that we know from experience that a lot of times there is debate in our projects about issues that have nothing to do with the projects — issues about unresolved questions of housing, infrastructure or other questions that relate to federal responsibility. So we think the responsibilities of the federal government need to be clear in the way that this action plan proceeds so that industry can fill our responsibilities and the government is also fulfilling its responsibilities.
Senator Coyle: Much appreciated. Thank you, both.
Senator MacDonald: Ms. Joseph, you have called for a clear definition of FPIC in order to provide greater certainty in the legislation when it comes to what free, prior and informed consent actually means. But the government has said the implementation of FPIC will be contextual. You noted and you said again today that FPIC must be seen as the process, not as an outcome. What, in your view, will be the consequences if FPIC remains undefined in the legislation? What do you see coming from this?
Ms. Joseph: Thank you, senator. I think companies and investors and, certainly, our industry take our responsibilities with respect to engagement with Indigenous peoples very seriously. All need to know how to fulfill their responsibilities. We have many responsibilities of the Crown that are delegated to us. If we don’t know how to fulfill our responsibilities, our members and their investors, more importantly, will take their investment elsewhere. I think that’s the important consequence we want to highlight.
I would pick up from a comment that Ms. Wheatley made earlier around the processes that are known for doing this properly. We agree that over the last 15 years, there has been a lot of work by companies and by other actors to define the process for meaningful consultation and engagement. But what we have seen in the way that the federal government is now trying to implement concepts of UNDRIP in the Impact Assessment Act is that they are departing from the principles that have been developed to help create a flexible process that recognizes the different impacts on rights of different nations so that companies know how to fulfill their responsibilities.
Our concern is we don’t know what will change; we believe it’s a process. Justice Canada’s principles for engagement with Indigenous peoples recognizes or looks at FPIC as a process. We want to put forward a definition that we think leverages those principles developed by the court and has been recognized as being effective.
Senator MacDonald: Thank you very much.
Senator Tannas: Welcome, panellists. Brian and Shannon, you have given us some cold truths around what uncertainty means and the fact that we don’t feel them immediately because nothing stops — just something didn’t get started, and that impacts the future more than the present. It’s probably even harder today with the entire Canadian economy being underpinned by the printing of money by our central bank, so we don’t feel what is going on right now, but someday we will.
The cold truth is, as Senator Coyle said, this bill is going to pass with no amendments. That’s my own opinion, and I think that’s what is going to happen. Therefore, observations become extremely important, and I believe there needs to be one simply entitled, “Clarity.” You have said that bureaucrats appear to be already front-running, expanding and making their own interpretations of FPIC in their work that has been enabled by Bill C-69.
You see the need to confirm that UNDRIP is not immediately applicable to all of the laws of Canada right off the bat, so that would be another piece of the observation around clarity.
You have suggested that the definition of FPIC must come forward in the action plan, and that the action plan needs to be resourced properly and have appropriate consultation.
Have I missed anything or is there anything you would disagree with in what I have suggested for a clarity observation?
Ms. Joseph: The only thing I would clarify is that ideally there would be an amendment defining FPIC in the bill. If not, then I believe the action plan process will be the place where this is clarified. We had another amendment related to provinces being able to develop their own approaches, similar to what B.C. has done, and this allows for things to develop uniquely based on contexts.
The only thing I would add is that it’s important for there to be clear communication ongoing about what things change on day one, because it’s really not clear and there is a range of expectations. Providing clarity will be important.
Senator Tannas: Expectations, yes, thank you very much. That’s good.
Senator McCallum: Thank you for your presentations.
Others have expressed that there are many uncertain items within industry, with self-determination, existing violation of human rights, especially with women and children within industry, climate change, environmental damage, mitigation around First Nations’ lives and environment, and free, prior and informed consent.
Who do you think needs to be around this table, around the process that you’re bringing up? When you add to that the over-incarceration of Indigenous people, missing and murdered, children in care, which are all ongoing forms of genocide, what happens if these issues are not addressed through the action plan? Thank you.
Mr. Schmidt: These are important issues that industry has recognized for many years. If you look carefully into some of the agreements we have with First Nations, and if you were to examine how lives have improved around projects in the communities where we have done business, I think you would see a positive story. I don’t think issues like this should be excluded from discussions here, whether it be through the UNDRIP principles. It’s important to be inclusive on those because industry is very inclusive on those kinds of issues.
Industry takes reconciliation seriously; the way we employ First Nations, the way poverty has been reduced, the way health has been improved in communities where we do work, and industry has built housing for a number of reserves and helped with a number of cultural issues. My own company is very involved on cultural preservation. That’s something which is well beyond any requirements or any duties. We take the whole package seriously. I really think all those things should be included.
Senator LaBoucane-Benson: Ms. Joseph, it’s nice to see you again. We have had many conversations, which began when we were looking at the Impact Assessment Act, and more recently about Bill C-15. It occurs to me that we’ve talked about the problem today again about no pipelines and what lack of capacity has done and meant to Indigenous communities that want to be invested in these projects. We have had this conversation, which started in CEAA 2012, when the Impact Assessment Act was changed to provide a shortcut, which didn’t work. Those projects wound up in court, and since then there has been a lot of discussion about how we have processes in place that work, that don’t have to wind up in court, that we can look at the section 35 rights of Indigenous people, incorporate them into projects, and have that done so this never ever goes to court.
Free, prior and informed consent is very close to where the jurisprudence is. We have had that conversation. We’re in that same ballpark. The definition that you’ve provided is kind of a culmination of that what that jurisprudence says. So I think the only missing piece in here is the Indigenous consultation on that definition. If this does go into the action plan — which officials have told us it is, and it is something I believe needs to have incredibly high priority to be resolved and one of the things we need to get settled quickly — how would you like to participate in that action planning? How are we going to make sure that Indigenous voices are heard and that we come to a set of principles — I don’t know if we’ll ever find a definition — that we can all agree on? What do you think that looks like?
Ms. Joseph: I want to comment first on principles and then talk about what the action plan can look like.
In terms of principles, and we heard it here today, we have worked a lot in Canada to develop something and, yes, our definition is a culmination of what we think has been developed. But I think what’s not adequately recognized or what needs to be considered as an important outcome of this is, like all other Canadians, there will never be unanimity among all rights holders about how things should look.
I heard some of the witnesses in the earlier panel talk about if companies fail to secure consent, then it’s their failure. Again, we see consent as a process, and those court decisions have recognized that unanimous agreement is not the requirement. As we saw with TMX, we had over 100 communities who said yes, but we still have four communities who strongly say no. However, we were still able to proceed with that project and are proceeding with construction.
Is that going to change with this law? Is the expectation that it would change? We have definitely seen those types of expectations and heard such changed expectations expressed in the different testimonies.
As long as we all recognize that we’ll never come to a place where all human beings agree about everything that needs to be done and we need a fair process for balancing all the interests, that needs to be an important part of the consideration.
In terms of participation by industry, we recognize this is a dialogue that has to happen between the Government of Canada and Indigenous governments. We respect that. We have much experience as companies in early engagement, ongoing engagement and structuring those processes. We would welcome being invited to that table, as appropriate, especially when looking at these questions of FPIC and the experiences we have had in consultation. That’s certainly how we would approach it.
Senator Patterson: In Nunavut we have a co-management regime where Inuit lead the regulatory review process and Inuit are engaged at every stage. We have seen equity participation and resource revenue sharing guaranteed through the land claim. However, Ms. Joseph, am I hearing that the concern you’re expressing here today is the fact that, without amendments dealing with the clear uncertainties you have very strongly outlined, we need to wait not just for the two years to develop the action plan, but also the time it would take to implement the action plan? Do you have a concern about the lack of clear timelines and clear procedural expectations like those included in the northern co-management regimes?
Ms. Joseph: In terms of clear timelines, we welcomed seeing a shorter time frame to get the first plan together, which now is two years. We know this declaration is not just about resource development and business, but from the business side it is important for us to understand how to fulfill our responsibilities adequately and in a timely manner. The investors need to be able to look at the law and understand what that means, and understand the structure for things happening and how things will be settled. To the extent these things are not clear, there will be consequences and it’s important for the right communications to be done. However, investors make their own decisions too, so the clearer we can be up front, the better.
Senator Patterson: Mr. Schmidt, do you have anything to add?
Mr. Schmidt: It’s the lack of clarity. For these major linear projects, the regulatory process itself can be upwards of a billion dollars. When you have a process where there is uncertainty, especially toward the end when you’re nearing approval of the process, and you introduce an element of uncertainty, there isn’t anyone who would want to put that. I would ask the question of any senator here today: Would you think about putting your own personal money into a project — a billion dollars; you’re a shareholder — that might get approval 8 to 10 years out? There just aren’t very many individuals, let alone corporations, who would take that risk.
What we’re striving for is having some predictability and certainty about the process. That’s where the action plan really has to be crisp and succinct, and makes sure that the rules are well understood. Then the investment community can make decisions and Indigenous partners can all benefit. Until we have that clarity, it will be very difficult. Thank you.
Senator Patterson: Thank you very much.
Senator Tannas: My question is for Brian Schmidt. Brian, you are a native Albertan, you grew up on a ranch. I think your neighbours were fairly close to Indigenous communities. You’ve been in the oil patch your whole life. How much has the industry changed, in your view, from the caricature of the bullies who are uncaring and all about money and cigar smokers, to where things are today? How much has the industry changed? Can a bully still succeed in today’s energy industry?
Mr. Schmidt: That’s a very good point. I grew up next to the Kainaiwa and the Piikani. I went to school with a lot of those kids and remain good friends. My father did business with the Kainai selling bulls. I have had many years. In coming into the oil industry, I would say that kind of relationship was very weak with Indigenous people. Especially when you get into the aspects of Crown land. There wasn’t respect in terms of trap lines or in terms of how we were affecting their livelihood. It’s completely changed because an oil and gas business cannot succeed without having Indigenous involvement. That requirement has long passed; that we see strength in that relationship. I can see a number of my peers who don’t adhere to that respect, don’t consult, and take Indigenous territory for granted. I have seen that destroy those companies.
I think it’s even more so in the future because there are a lot of environmental pressures and a lot of Indigenous involvement. It can help you with those things, and bringing them in as an equity partner is really the only way that linear projects are going to get done. I have gone on record to suggest that large linear projects are probably best led by First Nations as opposed to the oil and gas industry, and we’re in a supporting role, not a leading role.
Senator Tannas: Thank you.
The Chair: Thank you, Mr. Schmidt. That exhausts our questions for this panel. I wish to thank our witnesses for meeting with us. I thank Mr. Sevestre, Ms. Wheatley, Ms. Joseph and Mr. Schmidt.
I wish to welcome the Honorouble Carolyn Bennett, P.C., M.P., Minister of Crown-Indigenous Relations and the Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada. Welcome to both of you. Ministers will be accompanied by departmental officials. Ministers Bennett and Lametti will each provide opening remarks of approximately six minutes. This will be followed by a question and answer session with senators, for approximately 3 minutes and 20 seconds per question.
The first question will be asked by the sponsor of the bill, Senator Patti LaBoucane-Benson, and the second question will be asked by the critic of the bill, Senator Dennis Patterson. If 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 31, 2021, which is today.
Committee staff will advise me, through text, when there are 10 second remaining in the speaking time of both witnesses’ introductory remarks and the senators’ question and answer time. I will do a 10-second visual countdown using my hands, and when I reach zero, I’ll let you know that your time has expired. I wish to invite Minister Bennett for her opening remarks.
Hon. Carolyn Bennett, P.C., M.P., Minister of Crown-Indigenous Relations: Thank you, Senator Christmas. Before I begin, I wanted to acknowledge the horrifying discovery in Kamloops late last week, and our hearts are there with the families and communities impacted by this tragic news. As everyone here knows, the TRC brought to light the truth about Canadian history and what took place at residential schools, particularly the issue of missing children in Call to Action 71 to 76 and in Chapter 4.
I think we know that once you know the truth, you can’t unknow the truth. I wanted, senators, to just assure the members of this committee that our government will continue to engage with the communities on the development of culturally appropriate approaches to identifying these deceased children, locating burial sites and commemorating and memorializing those who died or went missing while attending these schools.
It’s a pleasure for me to be back with you again, now at the end of your review of Bill C-15, to discuss the legislation and what you have heard throughout your extensive study.
I would like to acknowledge that I speak to you today from the traditional territory of the Mississaugas of the Credit First Nation. I want to pay tribute to those who paddled in these waters and whose moccasins have trod this land.
I would also like to note that I am supported today by Ross Pattee, Assistant Deputy Minister, Implementation Sector, and Marla Israel, Director General of Crown-Indigenous Relations and Northern Affairs Canada.
As you know, through decades of work by so many inspiring Indigenous leaders — including Dr. Wilton Littlechild, former MP Romeo Saganash, Sakej Henderson and so many others — the UN Declaration on the Rights of Indigenous Peoples was adopted by the UN general assembly more than 13 years ago.
Five years ago, I was proud to attend the UN Permanent Forum on Indigenous Issues to announce that Canada is now a full supporter, without qualification, of the declaration and affirm Canada’s commitment to adopt and implement this historic international human rights document in accordance with the Canadian Constitution.
As I did when I appeared before you earlier this month, I would like to recognize former MP Romeo Saganash for his work to advance the private member’s Bill C-262 to provide a federal legislated framework to implement the declaration here in Canada.
As you know, after Bill C-262 died on the Order Paper in the last Parliament, our government committed to introduce government legislation to implement the declaration, establishing former Bill C-262 as the floor. Now, I urge you to pass Bill C-15 into law.
British Columbia, as you know and have heard, unanimously passed Bill 41 in 2019, which mandates the Government of British Columbia to bring provincial laws into harmony with the declaration and requires the development of an action plan to achieve this alignment over time. Bill 41’s passage and the early stages of its implementation have been tremendously positive in British Columbia.
As you know, the committee heard from the AFN National Chief Perry Bellegarde:
You will note that the bill requires the laws of Canada to align with the rights and standards in the declaration. This, along with a statutory commitment to an action plan that is developed with Indigenous peoples, will help spark and sustain the transformative change that is urgently needed.
You heard from Natan Obed, the president of ITK:
We see this piece of federal legislation as a positive contribution to the approach of human rights being applied equally to all Canadian citizens.
And you heard from David Chartrand from the Métis National Council, when he spoke at the INAN committee:
We believe that passing this bill into law is critical to a future that respects our rights as a nation. We urge members to expedite the process to ensure that Bill C-15 is passed in this session of Parliament.
The legislation has broad support from First Nations, Inuit and Métis from across the country and represents a crucial positive step towards reconciliation. It’s the product of extensive and meaningful engagement with Indigenous rights holders and other partners. The bill reflects that input.
We acknowledge some Indigenous partners have expressed concerns. We have addressed some of those concerns through amendments and others through continued engagement and clarification, and we will continue to do that.
As this bill is passed, the development of the action plan will be a further opportunity to address priorities and work in close partnership with Indigenous rights holders, governing bodies, regional organizations, women and others on implementation.
Budget 2021 provides $31.5 million over two years to support the meaningful development of Bill C-15’s action plan with Indigenous partners and experts to ensure that the implementation of the legislation is effective and accountable.
We also welcome advice from the observations of this committee on how to ensure that we meaningfully engage rights holders and other Indigenous partners in a credible co-development process.
As Dr. Mary Ellen Turpel-Lafond told this committee:
We need to adopt this bill so that we can have tools and approaches that are more affirming and that advance reconciliation so that the Crown has proper guidance from Bill C-15 so that engagements with Indigenous peoples would be respectful and based on the recognition . . . .
Therefore, I’d like to quote from Dr. Littlechild to say:
I urge you to pass this bill, in a non-partisan way, after all it is about our equality, survival, dignity, being well and reconciliation.
Thank you. Meegwetch.
The Chair: Thank you, Minister Bennett. Minister Lametti, your opening remarks?
Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, Mr. Chair and honourable senators.
Good morning. I would first like to acknowledge that I speak to you today from the traditional territory of the Algonquin nation. I thank you for the opportunity to be here today to continue our discussion on Bill C-15, an act respecting the United Nations Declaration on the Rights of Indigenous Peoples.
Before I begin my formal remarks, I too would like to address the horrible news from Kamloops on Friday: the discovery of the mass grave with the bodies of 215 Indigenous children at the former Kamloops Residential School.
It leaves me heartbroken. To be honest, it leaves me angry. This discovery reflects a tragic and shameful part of Canada’s history, and it underscores the work that we need to continue to undertake to fully understand, acknowledge and respond to the national tragedy of residential schools.
As Minister Bennett said, we will work as a government to ensure that happens. I assure you that, for anything that falls under the justice portfolio, I will examine all options as to how we can further that very necessary process.
Since Minister Bennett and I appeared before you on May 7, you have had the opportunity to study the bill and hear from many witnesses, including academics, legal and policy experts, and Indigenous leaders, including those representing Indigenous youth. These witnesses brought a variety of perspectives.
I appreciate the time and effort that you on this committee are taking to review this important legislation. Bill C-15 can help structure collaborative and respectful dialogue with Indigenous peoples and establish concrete measures that can help us move forward together.
Throughout the parliamentary process, there has been a lot of emphasis on free, prior and informed consent. As I have consistently explained and will reiterate, free, prior and informed consent is a process of meaningful participation that involves Indigenous peoples, from the outset, to inform and even influence government decision-making processes. While the process does not remove or replace government authority to make decisions, it does inform how that authority should be exercised.
In recent years, the Government of Canada has taken steps to improve consultation and engagement processes in various contexts, including in the natural resources sector through legislation like the Impact Assessment Act.
A number of witnesses have spoken eloquently about other approaches, including co-management boards in the North and in modern treaty arrangements, each of which offer effective and consensus-based processes for decision making. These are positive examples of working together, and they should serve as an inspiration to all of us as we undertake the importance work of implementing the declaration.
At the same time, it’s imperative that we remember and recognize that the declaration is a human rights instrument. Its scope includes, but also goes well beyond, sustainable economic resource development. We must not limit our view of the declaration, because it includes a full range of economic, social, cultural, political and civil rights that are essential to the dignity and well-being of Indigenous peoples. It’s a critical tool in our collective efforts to address the legacies of colonialism, systemic racism and discrimination faced by Indigenous peoples in Canada.
While there are many stories of innovation and success across First Nations, Métis and Inuit communities, the pervasiveness of disadvantage, prejudice and racism faced by Indigenous peoples is well documented. A range of investigations and inquiries have reached similar conclusions such as the final report on the National Inquiry into Missing and Murdered Indigenous Women and Girls, the Truth and Reconciliation Commission of Canada: Calls to Action, the Government of Quebec’s public inquiry — the Viens Commission — on discriminatory practices in the delivery of services, and countless reports, including the recent one by Dr. Mary Ellen Turpel-Lafond, In Plain Sight, that highlights the racism and discrimination Indigenous people face in British Columbia’s health care system, as well as international reports on Canada’s human rights situation, such as the UN Human Rights Watch’s World Report 2020.
As a country, we can do better, and we will do better.
This will not be easy and will take time, but the implementation of the declaration to advance reconciliation will help us get there. For example, the Government of Canada will continue to work on Indigenous health issues and policing legislation to address systemic discrimination and over-representation of Indigenous people in the Canadian justice system through an Indigenous justice strategy and ongoing negotiations through the Indigenous rights and self-determination tables.
Ultimately, Bill C-15 is about legislating our country’s commitment to reconciliation and the affirmation of the human rights of Indigenous peoples. It offers a structured and systematic approach to working collaboratively and respectfully on matters of importance to all Canadians. That is why, as you heard from many witnesses, it is important to pass this legislation without delay.
We heard calls from the national leaders of the Assembly of First Nations, the Métis National Council and Inuit Tapiriit Kanatami, among others, to proceed with urgency and pass Bill C-15.
Senators, it is in the collaborative work following Royal Assent where real progress in achieving the declaration’s objectives will be made. It’s time to turn the page and begin the next chapter in our reconciliation journey, making Canada a better country for all. Thank you.
The Chair: Thank you, minister. Now, I would like to open the meeting for questions.
Senator LaBoucane-Benson: Thank you to the ministers for being here. My question is for Minister Bennett.
We have heard from treaty chiefs and treaty rights holder chiefs specifically in my area, the chief of Alexander, the chief of O’Chiese and the current Grand Chief, that they are opposed to Bill C-15, because they want to focus on the treaty talks, their treaty rights and fully realizing the promise of the treaty. We have a letter today in support of Bill C-15 from Louis Bull, Enoch Cree Nation and Samson’s past Grand Chief.
Can you help the committee understand what is going on right now in treaty talks? I would like to focus on Treaty 6 in particular. What is the commitment to continue making sure that the promises of the treaty are realized?
Ms. Bennett: Thank you senator for the question, because it is so important. As we move to accelerate the progress to self-determination, it is about inherent and treaty rights, and it is about nations choosing to design a governance model that will work for them in their relationship with Canada.
Moving on treaty governance was certainly a priority of the former Grand Chief of Treaty 6, Billy Morin.
We want to really support whatever governance that is about rebuilding nations and treaty governance. We want to work with our partners in how they all get out from the Indian Act with a governance model that works for them, based on their traditional laws and customs, and the ways they made decisions as nations in the past.
Senator LaBoucane-Benson: Thank you very much.
Senator Patterson: Thanks very much to the ministers for being here.
Minister Bennett, when you were last before this committee, there were several times when you described the government’s approach to implementing the UN declaration as “nothing about us without us.” Since then, minister, we have heard from several rights holders from Treaty 6, 7 and 8. They explained they were upset that this bill is moving forward without the government respecting the bilateral treaty relationship. They talked about agreements to move forward that have not gone anywhere.
The Association of Iroquois and Allied Indians have argued they feel that no proper consultation was done with any rights holders in Ontario, they told us. Grassroots organizations such as Defenders of the Land and Idle No More have told us that they call upon communities and nations to reject this bill. We have also heard consistently that the AFN is a lobby organization and doesn’t represent rights holders. This has been echoed by many more witnesses and submissions.
We have a solemn duty in the Senate to listen to and represent minorities. So in the face of comments like “we do not give our consent” and “we reject this bill,” minister, are we not barrelling forward without these Indigenous community leaders, treaty holders and rights holders?
Ms. Bennett: Thank you for the question. All of us as parliamentarians know that consensus is not unanimity. There were people even on section 35 who did not think that Indigenous rights should be in the Constitution of Canada; they felt it was separate. There are many people across this country who still believe that with respect to Bill C-15.
The rights holders are individuals. You’re right that organizations don’t have rights. It is about individuals, and I think, as Senator LaBoucane-Benson identified, that until rights holders choose the governance as to who speaks for them, we will not be in a true partnership with the rights holders of this country.
As you know so well, senator, when you think of Natan Obed and ITK, those rights holders — Inuit rights holders — are very much agreed that this is the path forward.
We will continue to engage on the implementation plan, but there is a consensus to move forward on this that has been in Canada for over a decade. I think we will look back on this time and realize we have changed history by implementing Indigenous rights in Canada and articulating it into Canadian law.
Senator Patterson: Thank you.
Senator Coyle: Thank you very much, Minister Bennett and Minister Lametti, for being with us again today.
You were right: We have heard a lot of positive feedback over the last few intense days of testimony for Bill C-15. The majority has asked us to urgently pass the bill.
That doesn’t mean, however, that we don’t need to pay a lot of attention to those who have real concerns. We have heard concerns from rights bearers about treaty rights but also about the whole consultation process. We’ve heard about a lot of mistrust.
We have heard from the resources sector about their concerns about this bill exacerbating the already difficult environment, lack of clarity, et cetera, for the resources sector. We also heard from one particular provincial Minister of Aboriginal Affairs, Minister Dunn from New Brunswick. I would like to ask you about what she had to say; I want to hear what your answer is. Either of you can answer.
She said the federal government has chosen to respond to the TRC’s report to fully adopt and implement the UN declaration by embedding the full text of UNDRIP into federal law. She says that they have no authority to make that choice for New Brunswick or any other Canadian jurisdiction, and yet it appears they are doing 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. This is one specific change that New Brunswick wants to see before Bill C-15 is given Royal Assent.
Perhaps it’s for Minister Lametti to talk about Canadian law versus federal law, and the implications for the provinces. Thank you.
Mr. Lametti: Thank you, Senator Coyle, for the question. It’s an important one because there is a fundamental misunderstanding at the basis of the question.
We have acted according to the general principles of the way Canada implements treaties that are signed at international law. The implementation of this treaty — through the action plan and any changes that are made — will apply to the laws of Canada, federal law, and then provinces have to implement in areas of their jurisdiction, as British Columbia has already done.
When the previous Conservative government adopted the declaration, it had interpretive force in Canadian law. That’s what the minister in New Brunswick is referring to. It already has that interpretive force, because it was adopted by the government, as do any other international documents, particularly UN documents, to which Canada accedes. They have interpretive force.
So it already has interpretive force in front of Canadian tribunals at all levels of society and government in Canada. That is already the case.
This implementation act will be moving toward implementing the law with respect to federal laws, and then we would encourage provinces and territories to do likewise in areas of their jurisdiction.
The Chair: I’m sorry, but the time has expired.
Senator Francis: This question is for both ministers.
It is no secret that there is a great deal of skepticism, distrust and even fear of the federal government among some Indigenous communities due to colonization, and related policies and practices. What exactly are you and your government prepared to do to better address this complex dynamic? Could you please point to immediate and concrete actions following passage of this bill?
Mr. Lametti: Thank you for the question.
I acknowledge that distrust exists. It is sadly because of our colonial history, and it’s largely merited. The recent discovery in Kamloops is just yet another example of that tragedy.
The only way we can turn this ship around is step by step. I think our government has taken some meaningful steps. Passing UNDRIP and adopting it into Canadian federal law is a meaningful step. It’s more than symbolic. It requires us to have an action plan and develop that action plan in collaboration and consultation with Indigenous peoples across Canada and a variety of their leadership forms, rights holders, modern treaties, older treaties, national and regional organizations, et cetera. That’s a meaningful step too.
I’ve been charged to develop an Indigenous justice strategy. I invested a week and a half ago in approximately 20 projects across Canada of half a million dollars each to help revitalize normative Indigenous legal systems, and we will continue to make those investments under Call to Action 50.
Minister Bennett is pushing forward on other projects with respect to treaties and negotiating. Minister Miller is working on drinking water. We’re making real progress in that regard.
We’re getting there. It is a national project. It continues to take time. It is worth every effort and penny that we put into it. We just need to keep pushing on all fronts in order to rebuild the trust that in many cases has been lost, and where that sense of disappointment, dissatisfaction and distrust is entirely justified. We need to rebuild.
Ms. Bennett: Senator, I was just going to cite that in Bill C-91 on languages and Bill C-92 on child and family services that UNDRIP was cited in that legislation and that allows us now, as Minister Miller works with community to develop the Indigenous health legislation, and I think you’ve heard from Dr. Mary Ellen Turpel-Lafond that Article 24 and some of the other articles will really inform that way forward, such that First Nations, Inuit and Métis are able to have equitable health but use their own medicines, use their knowledge keepers and traditional healers and be able to develop a health system that works for them.
Senator Francis: Thank you, both.
The Chair: Thank you, ministers.
Senator MacDonald: I think I’ll direct my question to Minister Bennett, and I’d like to pick up on the question from Senator Patterson. You did say, “Nothing about us, without us.” Recognizing that those voices include those rights holders who are pushing for economic reconciliation and an end to the poverty that contributes to so many negative social indicators, I find it difficult to accept that the concerns raised to the Prime Minister by Dale Swampy on behalf of the National Coalition of Chiefs received only a generic response. Mr. Swampy stated that the Prime Minister promised that he would have his office and the office of the other ministers deal with their problems:
Of course, we never received a response after that. We were discouraged by the fact that it was something that never really had any follow-up to it.
Minister, I have to ask, is this what a true partnership with rights holders should look like: bypassing anyone who doesn’t agree with you and dealing only with national organizations that many have said do not have the right to make these decisions on their behalf? Thank you.
Ms. Bennett: I think Minister Lametti will be able to carry on in terms of what implementation looks like. But in terms of economic self-determination, I think that even in the non-Indigenous resource industry there are many who feel that this will be very helpful as they go forward with certainty and to make sure that, again, that this doesn’t end up in court or with blockades. Having Indigenous people at the earliest stage of a resource project really ensures its durability as a project. I think that as we work forward — like has happened with the self-governing nations in the Yukon — it allows real partnership with resource development and an economic future.
Mr. Lametti: Thank you, Senator MacDonald. If I might add, with respect to the consultation process, we consulted with more than just the national organizations. Yes, the national organizations don’t represent rights holders, but they do represent a significant swath of Indigenous leadership across Canada. We have consulted with rights holders. We’ve consulted with modern treaty nations, traditional treaty nations and nations with no treaties. We said that we would start at the beginning of the process, that we would table the legislation and continue consulting, which is what we did, and I’m still consulting.
Our team has reached out. It has made itself available, including to groups that perhaps didn’t respond with a call. So we continue to push, and we continue to try to speak to as many as we can, and we will deal with those gaps in the action plan. We will continue to try to reach out to as many peoples across Canada, as many nations across Canada in whatever governance form they find themselves but rights holders in particular, obviously, and we will continue to work and collaborate with them. I think in the amount of time that we’ve had, we’ve done a fair job, and we will continue to speak with every single group that we possibly can.
The Chair: Thank you, Minister Lametti.
Senator Anderson: My question mirrors Senator Francis. It’s good to see we’re on the same page, but I think it’s important to ask. I’m going to direct it to Minister Bennett.
What has been clear from some witnesses who do not support Bill C-15 is the lack of faith and trust in Canada to honour historic treaty agreements, commitments with and for Indigenous people. These include commitments such as the Missing and Murdered Indigenous Women and Girls action plan and, to be very frank, basic human rights for Indigenous peoples in Canada, including housing, clean water, adequate health care, food security and education.
Minister, Bill C-15 does not go far enough for some, and “good faith” and “honour of the Crown” is no longer sufficient for some rights holders. This bill requires a huge leap of faith that Canada will act honourably in aligning our federal laws with the UN declaration. What are you prepared to do with Bill C-15 to enhance the trust and ensure Canada honours its relationship with Indigenous people? I’ll just expand on that. Not only if this bill is to pass but also to embed concrete actions to ensure that this bill will pass? [Another language spoken]
Ms. Bennett: [Another language spoken] I think that when you look to the investments that have been made, this is the most important relationship to our government, as the Prime Minister has said, and that it is about each minister now knowing that the relationship has to be based on the recognition of rights, respect, cooperation and partnership, and that is in everything we do.
I think our response to the National Inquiry into Missing and Murdered Indigenous Women and Girls is an example of a whole-of-government response where it isn’t just Crown-Indigenous relations. It is then backed up by $2.2 billion in the budget as well as $18 billion to do all of the social determinants that you have raised, and that this is a commitment going forward.
The cynicism is earned, as Minister Lametti said. We understand how long it takes to rebuild trust. We are committed to being a true partner as we move forward to actually honour the spirit and intent of treaties and honour the spirit and intent of the original agreement that this land would be shared fairly, and that that’s really what the rights of Indigenous peoples means. I think as a land claim beneficiary, I think that the Inuit-Crown partnership in the way we’ve been working with Inuit and President Obed is an example of how that can go forward with a great partner that is, indeed, the rights holders.
The Chair: Thank you, Minister Bennett.
Senator Stewart Olsen: My question will be for Minister Lametti. I’m building on a very good question by Senator Coyle about the questions concerning provincial and federal laws. Your answer, Mr. Lametti, didn’t make it clear to me. We had a brief from Champagne and Aishihik First Nations. They made it clear they believe the framework extends to and applies to the Yukon territorial government. There is still confusion and different expectations arising from the use of laws of Canada.
I understand, minister, that UNDRIP is already used as an interpretive tool by the courts. However, to make it very clear for those who are concerned about what laws can be targeted by the action plan process, does this bill only extend to federal law?
Mr. Lametti: Thank you, senator. The short answer to the question is yes. The laws of Canada — loi fédérale — is the traditional formulation that has been used in our drafting to apply to federal legislation.
I appreciate that the status of the territories is slightly different because they are creatures of federal law, but we have made it clear from the outset that this is not meant “laws of Canada” as we’ve used it here and we have stated it — is that it is not meant to change the status of the territories, that the territories will have to implement UNDRIP on their own. And, indeed, there has been a great deal of willingness on their part so far that they have discussed and are hopefully moving forward quickly, but have expressed an interest in doing this with respect to their laws.
The interpretive provision is in front of tribunals and Canadian courts. It is already the case that this can be used as an interpretive tool, as is the case with any other UN declaration that Canada as adopted.
Senator Stewart Olsen: Thank you, minister. You say you have made it very clear, but when you have a minister from the province saying it’s not clear, I would urge you to commit to contacting the provincial and territorial people and talking to them because this has to be clear.
Mr. Lametti: With respect, senator, I did that at a federal-provincial-territorial meeting. I made it very clear in my remarks. Then, sadly, one of the ministers spoke afterwards as if he hadn’t listened to my remarks.
We’ve been trying to make it clear all along. I believe there is some political posturing going on. But we have made it clear that we intend this bill to apply to federal laws. This is the case for any treaty that gets implemented in Canada after the Supreme Court decision in the labour relations reference. We adopt the treaty at the international level and then we implement it in areas of our jurisdiction, and then the provinces and territories will implement it in their areas of their jurisdiction. It’s been a long-standing practice in Canada.
Senator Stewart Olsen: Thank you, minister.
Senator Tannas: I have two questions for Minister Lametti. First, we did hear concerns in various forms from all kinds of people on all sides, around clarity and divergent expectations of people.
You were very clear in our first meeting with you about a number of things; the application in law and the fact that FPIC will see further clarification in the two-year action plan development period, et cetera. There is a lot there, when I listened and then when I reviewed the transcript, that I think we could use to incorporate direct quotes into an observation that will provide a lot of clarity.
Before we go off and do that, is there anything that you saw or your people saw in what you said at our first meeting that you need to retract or clarify?
Mr. Lametti: No, certainly not that I recall as I was speaking and certainly not that my team brought to me.
We would welcome your observations, Senator Tannas. They would be exceptionally useful in the implementation and development of the action plan.
Senator Tannas: I agree with you, sir. I’m going to work hard to convince my colleagues that that’s an important piece of what we need to do.
I have one other question. We heard a lot of folks saying that defining FPIC during the action plan period was important. I was surprised that Romeo Saganash was not keen on that. He didn’t say who ought to define it and if it would be the courts over many years or what. Minister Bennett or Minister Lametti, do you have anything that you want to add around what we need to do to bring some kind of clarity to FPIC, rather than seeing everybody run to court to have it done over the next 10 years?
Mr. Lametti: Thank you, senator. Again, the idea of FPIC is a process. It’s about getting Indigenous peoples to the table for resource development or anything else that has an impact on them, their lives or on their lands.
The critical point is that it’s a process, it’s contextual and it can’t be defined ex ante at the outset. It’s impossible because there are so many different contexts in which Indigenous peoples find themselves and in the context of whatever is being proposed to be done. It’s about getting meaningful dialogue and discourse going from the beginning. It’s my firm view that this will actually avoid a lot of conflicts and a lot of court cases as well. Because if you’re there from the beginning and you’re talking and exchanging from the beginning, that’s the best way to avoid litigation.
So we can work to develop the action plan guiding principles and that sort of thing, but I would agree with my former colleague Romeo Saganash that it would be impossible to define this. So we just need to keep pushing forward.
Senator Pate: Thank you to both ministers for appearing. My question is for Minister Lametti. Thank you very much for your comments thus far on how you see the implementation of the UN declaration at the federal level.
As you’re no doubt aware, in the absence of the prerequisite measures to address things like economic, social and other kinds of legal inequalities — not to mention the boil water advisories and the like that would create a more substantively equal situation for Indigenous peoples and a starting point for Indigenous peoples in this country — the measures that you’re talking about that are providing funding to indigenize the criminal legal system. All past measures of similar ilk have resulted in increased numbers of people criminalized paradoxically, because those prerequisite measures arguably have not been implemented.
How do you see these being done and what measures — in particular in terms of the funding you’re engaging in with Indigenous communities — are aimed at decolonizing approaches, decriminalizing approaches and decarceration approaches? As you know, the critique of what has been proposed so far is that the legislation will not achieve that. In fact, your department has not been able to provide the data to back up those claims as well.
Mr. Lametti: Thank you very much for that question.
I think we’re on the same page in the sense that we want to get to the same place. We know that we have to address and improve on those various social determinants if we’re going to have success. If we’re going to have success in the criminal justice system, we have to address housing, clean drinking water, systemic racism and health systems, et cetera.
I think we are doing that. We are trying to do it all at once on many fronts. Many colleagues are engaged in all of this. Again, I point to Minister Miller and his work trying to solve the drinking water challenges. We’ve solved about two thirds, but some of them are very long-standing and they’re going to continue to take more time and effort and more resources.
In my case, one the key things I am trying to do is to help allow Indigenous normative systems to flourish again. They’ve always been here. They took a substantive hit from colonization and the imposition of Western colonizing legal systems. So we are funding, under Call to Action No. 50, a number of brilliant projects across Canada that are designed and driven by Indigenous peoples themselves. There are a variety of different kinds of projects identifying the ways in which they feel they can move forward to have a reflourishing of their own Indigenous normative system and Indigenous legal systems.
Obviously, we need to work on policing, Indigenous policing and a number of things at a time. It’s only by continuing to push on all fronts — and UNDRIP is part of it — that we can make it better.
So I agree with you completely that we have to address social determinants. We’re trying. We don’t have a magic wand, but we are moving the dial quite substantively in the right direction. I think we’ve moved the dial more than any government has in Canadian history. So we’re getting there. It’s just going to take a lot of time to unwind a couple of centuries of colonialism.
Senator Hartling: Thank you, ministers, for being with us. I’m going to continue on in the vein that Senator Coyle and Senator Stewart Olsen talked about and you expressed.
I’m from New Brunswick. Friday was a very difficult day because we heard about the graves being found in Kamloops. Then we had the New Brunswick Minister of Aboriginal Affairs referring to New Brunswick’s opposition to this bill. Then we listened to the person from B.C. talking about and UNDRIP. There was a lot of information flowing through. I want to make sure I’m clear because there are a lot of people commenting on my Facebook about how UNDRIP will affect New Brunswick. I understand there are laws, et cetera.
If UNDRIP does pass, how will that affect New Brunswick? What can we expect to happen here? What can we do to make sure things go smoothly?
Mr. Lametti: Thank you, senator, for that question.
UNDRIP already has a potential impact on the interpretation of all laws in Canada, including in New Brunswick and at every level ever since it was adopted by the previous government. That was reaffirmed without reservation by our government a few years ago.
UNDRIP as an interpretive tool, just as any UN declaration, already exists as a source of law — an interpretive source of law — in front of tribunals. That’s already the case.
When UNDRIP is passed, I will be required, along with my ministerial colleagues, to develop an action plan. That will be with respect to federal laws. People living in New Brunswick, to the extent there is a federal law applicable to that, will be subject to any changes that come about as a result of that process. With respect to areas of provincial jurisdiction — and a lot of the resource development that happens is in provincial jurisdictions — it has to wait until the Province of New Brunswick decides to move ahead with implementing legislation on its own part, the way that British Columbia has and as a number of other provinces are thinking about doing.
We’ll obviously cooperate with the Province of New Brunswick to try to help make that happen. There is a good model in British Columbia, and there is now an additional model at the federal level.
That’s a positive space. I hope the Government of New Brunswick will seize that opportunity once Bill C-15 passes.
Senator Hartling: Thank you.
Senator McCallum: Thank you for your presentations.
Mr. Lametti, as was true previously with government bills, Bill C-91 and Bill C-92, that were important on the so-called Indigenous file, we find ourselves receiving Bill C-15 at the very end of a session, with inadequate time to study this bill in a fulsome and responsible way. This has resulted in witnesses before this committee and senators indicating that amendments should not be brought forward to this bill, as it may endanger its passage due to time constraints.
As a matter of fact, on Thursday, after my speech, I was asked this:
. . . could you tell me why you would support the possible delay and possibly not even getting this bill passed by introducing amendments? . . .
— which is a very unfair question to put on my shoulders.
Minister, surely the role of senators in providing sober second thought and possible amendments is a valuable and necessary part of study. Can you give your thoughts on whether amendments should be withheld on this piece of legislation because of concerns the government has regarding the timing of the bill’s passage? Thank you.
Mr. Lametti: Thank you for that question.
As you know, on the House of Commons side, we are in a minority government situation and we are dealing with a pandemic. We started with a minority situation; the pandemic came later. For that reason, we decided to use Bill C-262, which had been present in the previous Parliament, which in the previous session the Senate had a chance to pass but didn’t, after it had passed in the House of Commons.
So this is not an unknown bill. The contents of it are very similar. I think we have improved it. I trust that my old colleague Romeo Saganash would say we have improved it as well. Certainly, the basis of what he did was already there. The Senate already had one chance to study it and move it forward.
There are constraints caused by the political system in a minority government that I can’t control, and so I have done my best within those constraints to move this bill forward. While I’m never completely opposed to amendments, there is a time dimension this time around. Also, because it’s a bill that has an impact on Indigenous peoples across Canada, there has to be some consideration of their views with respect to amendments.
The amendments that were passed in the House of Commons in the INAN committee were largely suggested and driven by Indigenous peoples themselves. So that was something on which we worked very hard in order to collaborate to get those amendments through the committee. I know the committee members worked very hard to work with Indigenous leadership in order to get those amendments through.
It is getting late in the game, and we think this is an important piece of legislation. We would like to get to the next positive step, which is building the action plan collaboratively and cooperatively with Indigenous peoples across Canada.
So I think it’s critically important that we pass this piece of legislation as soon as we possibly can. So while I’m never closed to amendments in principle, I really will implore you to weigh the considerations I have just given you, both with respect to time and with respect to Indigenous co-development of any amendments.
The Chair: I’m sorry, but your time has expired.
Senator LaBoucane-Benson: Thank you, but I don’t have any additional questions. If I can direct my questions to Senator Tannas, I feel like he has much more to ask.
Senator Tannas: I don’t know whether to take that as a compliment, but thank you.
One question that I have to say I worry about; the original bill had a three-year time frame for the building of the action plan. Presumably, the government had given some thought as to why they thought they needed three years. It’s now been changed to two years.
What has come out of the thinking, and the structure of your plan to make a plan, in order to meet that? We can say among friends that, for lots of reasons, we haven’t covered ourselves in glory about meeting timelines, even when they weren’t shortened by amendment.
Can you give us something that says that we’re going to meet this timeline come hell or high water, and how you think you’re going to do that?
Mr. Lametti: Thank you, senator. Obviously, I thought the original three-year timeline was reasonable. This is an amendment largely driven by Indigenous leadership across Canada who are justifiably impatient with measures that have taken place in the past.
A number of you have pointed out, again quite rightly, that I haven’t been able in the period so far given to me to reach out to every Indigenous group in Canada that wanted to be heard on this. I’m continuing to do that. But I definitely see the challenge of doing it within two years as opposed to three.
So I’ll be honest with you, this is going to be a challenge. If the Prime Minister charges the Minister of Justice to be the lead on this, I will do my level best to get this done as thoroughly and positively as possible in that period. I will do my best to meet that time requirement. I understand how important it is, in particular to Indigenous peoples across Canada.
Senator Tannas: Thank you, sir.
Senator Patterson: Minister Lametti, in the last Parliament alone — you know I represent predominantly Inuit in Nunavut — Bill C-55, which made changes to the Oceans Act, was passed by the Senate with amendments brought forward by the Inuvialuit Regional Corporation. Those amendments were rejected in the House, and the bill passed into law. During consideration of Bill C-91, the Indigenous Languages Act, Inuit leaders, nationally and regionally, voiced their concerns about the insufficient level of protection being afforded to an established language, such as Inuktut, brought forward amendments. They were also rejected. Now Inuit leaders have unanimously asked us both on the record and via written submissions to include a layer of accountability by establishing a proposed Indigenous human rights council.
My question is this: Why must the Inuit always bend or wait for another time to have their concerns addressed? You said that amendments in committee were driven by Indigenous peoples. Why has this reasonable amendment from the Inuit not been incorporated into this bill?
Mr. Lametti: Thank you, senator. I would say it’s simply because of its complexity. I have spoken with President Obed, the other leaders of the four regional regions, as well as other Inuit leaders.
It is a concern — you are absolutely right — that all of them have raised with me. It is a concern that I share.
I do believe that UNDRIP pushes us towards more accountable institutions, and I have pledged to President Obed and others that I will work to develop those institutions.
In the time frame we had — as I expressed again to President Obed and others who are leaders within the Inuit community — despite being sympathetic to that call, I felt it was simply too complex to be able to do that across the board in the complexity of the Indigenous landscape, if you will, across Canada. However, I pledge to continue to work through that in the implementation process —in the development of the action plan in concert with Inuit leadership, because I do share the belief that this is an important part of implementing UNDRIP.
Senator Patterson: Thank you, minister. Just a quick question, and maybe we’ll have a chance to ask your officials. Are you aware that your officials have not fulfilled their promise to table a list of consultations that took place? It was promised earlier this month.
Mr. Lametti: I know that we have published a what-we-heard document. The consultation list continues, because I continue to consult. I would say, Senator Patterson, that I’m very proud of the work that Laurie Sargent and others have done on this as well as my political team. I think they have been outstanding in the time frame that they have had. Frankly, I think they have earned a great deal of respect from Indigenous leadership across Canada, and I have had compliments from them. I appreciate the work that my officials have done.
The Chair: Thank you.
Senator Patterson: Still need the full list.
The Chair: The time for this panel is now complete. I wish to thank the ministers for meeting with us today. We will continue on with the next panel of officials from Crown-Indigenous Relations and Northern Affairs Canada, and the Department of Justice Canada who are here to answer questions.
I would like to introduce the next panel. Joining us are Ross Pattee, Assistant Deputy Minister, Implementation Sector, Crown-Indigenous Relations and Northern Affairs Canada; Marla Israel, Director General, Crown-Indigenous Relations; Laurie Sargent, Assistant Deputy Minister, Aboriginal Affairs Portfolio, Department of Justice Canada; Sandra Leduc, Director and General Counsel, Aboriginal Law Centre, Department of Justice Canada; Koren Marriott, Senior Counsel, Aboriginal Law Centre Aboriginal Affairs Portfolio, Department of Justice Canada.
Departmental officials will not have any opening remarks. This panel will only be a question and answer session with senators for approximately three and a half minutes per senator. I’m sorry, because of a reduced time frame, we’ll change that to 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. This will be acknowledged in the Zoom chat. Please note that committee members will be given priority on the list of questioners. Any written follow-ups to questions should be submitted to the committee clerk no later than May 30, 2021.
Committee staff will advise me through text when there are 10 seconds remaining of speaking time for the senators’ question and answer time. I will do a 10-second visual countdown using my hands. When we get to zero I will inform people the time has expired.
I would open the floor for questions.
Senator LaBoucane-Benson: I have asked these very capable and brilliant witnesses many questions over the last month. The only thing I would ask is something that is a kind of corollary to — and it’s something Minister Lametti talked about — all of the Calls to Action that, since 2015, this government has worked on or addressed or is working on. I know you’re not going to be able to answer that here. I wonder if that list of the Calls to Action that the government is working on right now could be made available to the APPA committee . If you could get that to us down the road, I think that’s an important piece of information for this panel. But I will pass now to the critic.
Senator Patterson: Mr. Pattee, I have a few of your quotes from your last appearance that have stuck with me. You said, “My day job is to work on the implementation of treaties.” You said:
A number of other meetings have taken place to start to unpack how we’re going to work together. For example, with the Indigenous national organizations, we’ve already begun a dialogue on how we can look to work together to make sure that we can come forward with the best action plan possible.
And finally, you said, “We’ve already started discussions on how we’re going to organize ourselves with a variety of the key players.”
As someone who works on implementing treaties as, you said, a day job, can you please explain why you continue to engage bilaterally with the AFN and national organizations that several witnesses have told us do not speak for them, instead of having these discussions with folks like those representing Treaty 6, 7 and 8 who are demanding that Canada respect the bilateral nature of their treaties? Thank you.
Ross Pattee, Assistant Deputy Minister, Implementation Sector, Crown-Indigenous Relations and Northern Affairs Canada: Thank you, senator, for that question. This legislation requires that the action plan be developed in consultation and cooperation with Indigenous peoples. This aligns with the declaration itself, which in Article 38 calls on the states, in consultation and cooperation with Indigenous peoples, to take the appropriate measures to achieve the ends of the declaration. As we move forward, the plan is not to just consult with the national Indigenous organizations but with a variety of rights holders and with a number of other organizations from across the country, including both national and regional-level organizations. The plan to engage on the action plan is extremely broad. Thank you.
Senator Patterson: You said the plan is not to consult just with national Indigenous organizations. I take it that you’re agreeing with me that your consultation has primarily been bilateral with national Indigenous organizations and that folks who represent large swaths of the country and the treaties and in Ontario are saying rights holders have been left out?
Mr. Pattee: That’s not what I said at all. Leading up to the introduction of the bill, we held engagement sessions with over 70 meetings, involving over 450 different people. Those included a number of different organizations, for example, modern treaty partners and a number of other organizations. It’s much broader than just the national Indigenous organizations.
The Chair: Thank you. Senator Stewart Olsen.
Senator Stewart Olsen: Thank you for being here. Mr. Pattee, Russ Diabo is a spokesperson on Bill C-15 for three Indigenous activist networks. In relation to Bill C-15, he told our committee:
It is our opinion that the federal UNDRIP Bill C-15 must be reviewed and considered in the broader context of the Trudeau government’s record of stealth and deception in the treatment of Indigenous communities and Indigenous nations for the past six years, particularly the federal government’s unilateral development of a Canadian definition of the UN Declaration on the Rights of Indigenous Peoples. This constitutes massive, unprecedented changes to policy, law and structure, bypassing Indigenous peoples and nations who are the proper rights holders.
Mr. Pattee, when your minister appeared before our committee, she said that you were committed to “nothing about us and nothing without us.” Why doesn’t this apply to the rights holders as well?
Mr. Pattee: It does. I’m not sure what else I can add to that. The plan to develop the action plan as we move forward is to ensure consultation and cooperation of Indigenous peoples. As I have said before and as we’re starting to do now, that will include a variety of rights holders at the national and the regional level, but all sorts of other organizations: women’s organizations, LGBTQI, two-spirited organizations, urban organizations, the Congress of Aboriginal Peoples. So the plan is to ensure that all of those voices are heard as we move forward.
Senator Stewart Olsen: When we get the lists from you, as I’m sure you’re going to be sending them promptly, we will review them. Why weren’t the rights holders consulted before this time? Why are they left until later?
Mr. Pattee: With due respect, rights holders were engaged. Some of them may have said they had not had time to, or we may not have gotten to them all, but a number of rights holders were actually engaged leading up to the introduction of the bill. There was a compressed time frame and there have been lessons learned from that. What we’re planning to do is make sure that within the two-year time frame we’re able to listen to all the voices that need to be heard.
Senator Stewart Olsen: Thank you, sir.
Senator MacDonald: Thank you, Mr. Pattee. This is along the same line of questioning. Minister Lametti in his previous appearance cited time constraints arising from COVID and a minority government as reasons for the troubled consultation record. You yourself said the consultations were compressed in your May 7 appearance. This committee has not received the list of those you have engaged after tabling this bill, despite such a list being promised to all senators [Technical difficulties] on May 7. The deadline for written responses was yesterday.
Knowing there was a promise to bring an UNDRIP implementation bill after the government was re-elected, as well as the commitment to table this bill quickly, and already having Bill C-262 to use as the floor, why did your department not start reaching out earlier to the treaty holders? In the What We Learned Report on this bill, it outlines bilateral technical dialogues with national organizations but says nothing about treaty holders. Why would they not get a say from the beginning? Thank you.
Laurie Sargent, Assistant Deputy Minister, Aboriginal Affairs Portfolio, Department of Justice Canada: Laurie Sargent here. I want to supplement the information that Ross Pattee already provided to the committee, recognizing that it was the Minister of Justice and us who undertook to provide a list to this committee of those who participated in the engagement prior to the introduction.
Just to confirm, we did as part of the What We Learned Report. I have it right here. I’m sorry, we’re not in person, but this is the What We Learned Report that is online and has been shared with the committee. One of the annexes, Annex B, includes a list of all participating Indigenous partners and groups. It goes through a number of different rights holder organizations that were engaged across the provinces and territories, modern treaty organizations, or nations.
We want to ensure that the committee is aware of that information. Our understanding was it was provided through Minister Lametti’s office to the committee in list form as well. It doesn’t have the specific names of individuals who participated, but it certainly does include all the information that we were able to provide in relation to the range of groups that Mr. Pattee has mentioned.
I want to ensure that the committee was aware of that. If there has been some problem in transmission, we can resend. Thank you.
Senator Francis: Thank you. This question is for whoever would like to respond to it.
I understand that the federal government has allocated $31.5 million over two years to support the design of the action plan with Indigenous partners to implement Bill C-15. Could you please comment on how this funding will be allocated? Will some of it be used to increase the participation of diverse groups of Indigenous peoples, including youth and women and girls living on and off reserve?
Mr. Pattee: Thank you, senator. Yes, indeed, Budget 2021 did allocate in excess of $30 million toward the process as we moved into what we’re calling phase 2. We’re beginning to unpack how that is going to look. Indeed, it will be very important that money is used to ensure that all the voices that we have been talking about in the last appearance and today’s appearance are actually heard. So I’m quite hopeful and confident that we’ll be able to use that money in a way that makes sure those voices are heard. Thank you.
Senator Francis: Thank you.
Senator McCallum: Thank you. Since 1995, the inherent right of self-government has to operate within the framework of the Canadian Constitution, and thus not include a right of sovereignty in the international sense, and will not result in sovereign independence of Aboriginal nation states. This displaces the existing treaties and effects of determination. The policy also involves provinces and territories in negotiations. This goes against treaty negotiations as understood by First Nations, which is that treaties were based on a bilateral First Nations-federal Crown relationship. The federal policy on self-government is that Indigenous self-government must be consistent with federal and provincial laws, keeping Indigenous self-government within Canada’s legal framework and subordinate to other forms of government.
Ms. Sargent, when I asked you the question about Article 46, you said that the right was not absolute and there needs to be a potential for weighing in on other pressing societal needs and the rights of others. When we look at the right to self-government, how do you think this action plan will address that issue? What model was the First Nations treaty right holders looking at in order to move forward with the action plan? Thank you.
Ms. Sargent: Thank you, Senator McCallum. I will start by noting that while you’re, of course, right that the inherent right policy developed back in 1995 was adopted within the frame of the Canadian Constitution, as indeed all federal legislation or policy will be, at the same time the approach has undergone significant evolution since then, especially with the creation of the recognition of Indigenous rights tables, the IRSD tables that Minister Bennett and CIRNAC have been leading. There was an express departure from that policy. There was a flexibility and an openness to have conversations with Indigenous rights holders and to meet them where they were and to start talking about implementation of self-government in a way that would be more aligned with the United Nations declaration and with recognition of self-government and self-determination.
As part of the action plan, we would expect to see these conversations ongoing and to see them very much inspired by the United Nations declaration.
We have not spoken to treaty nations specifically about this in the context of our bill, but certainly those discussions are going on at tables across the country. I think we will see that the declaration can play a role in helping to supplement those discussions and require the federal government to essentially continue to update and modernize its policies. Thank you.
The Chair: Thank you, Ms. Sargent.
Senator Tannas: I have a request for Ms. Sargent. Maybe this was covered and I missed it.
Not just on this bill, but on other bills, we have heard from folks that were on lists saying they were consulted and they said they weren’t.
Maybe they were. But I remember one specifically, Mr. Obed, who said that he was surprised to find his name on the list of being consulted — this was on another bill — but then he remembered that there had been a discussion about something else entirely and then oh, by the way, that was put on the list.
Has your department done anything to formalize the consultation so that there is a meeting notice that says we are consulting you on this, so that we don’t wind up with people looking at us — and, frankly, it’s a confidence issue — saying, no, we weren’t consulted or we thought that was on something else. Surely there is some way in which you could formalize this so that, as that part of your presentations in future bills, you could say, here is what we heard, here is who we heard it from, on this day and here are copies of the invitations, if we so desired. Is that possible, or is that already being done?
Ms. Sargent: Thank you, Senator Tannas, for that question. In many ways, that is what the What We Learned Report was intended to do in terms of reflecting what had taken place over the course of engagement. There are ways we can do better in terms of formalizing a notice process, and I take that back. In some contexts, with respect to more specific projects, other departments are doing really well on that front in terms of compiling their record. I will confess that in this context, we found ourselves, as the minister noted, in a pandemic context, also in the context where letters were sent out from Minister Lametti. That was the initiation of the engagement process that took place, but we are still working on developing our abilities to really keep a proper and fully detailed record. We have it. We had consultants supporting us, but we need to continue to work to develop that process. Thank you.
Senator Tannas: Thank you, Ms. Sargent. I appreciate it.
Senator Francis: Ms. Sargent, the preamble to Bill C-15 acknowledges that provincial, territorial and municipal governments can each establish their own approaches to contribute to the implementation of the declaration by taking steps that fall within their authority. However, some provincial governments have called for the delay and even defeat of the bill due to their perceived impact on their jurisdictions. I am concerned that these claims are based on misrepresentation or misinformation spread about the actual impact of the bill on other jurisdictions. Could you please clarify what the obligations, if any, Bill C-15 would impose on the provinces and territories?
Ms. Sargent: Thank you, Senator Francis. I think you’ve pointed to the paragraph in the preamble that we certainly saw as reflecting the clarity that the government wished to provide provinces and territories, with respect to each jurisdiction’s responsibilities in relation to implementing the declaration in their own areas of responsibility. That, to us, was intended to clarify that point and really reinforce, as Minister Lametti said, the provision, in particular clauses 5, 6 and 7 of the bill say, which is that the obligations to prepare an action plan, to align laws and to report annually are on the federal government. They’re on federal ministers, and they relate to federal legislation.
Those are meant to be complementary, as I said. As Minister Lametti noted, clause 4 of the bill does speak to the role of the declaration as an interpretive tool in relation to all Canadian laws. This is, as I think we’ve talked about, meant to be a declaration of the existing affirmation of the existing state of the law. It does go beyond federal law, but it reflects what we already legally understand to be the case, while also highlighting its importance. Thank you.
Senator Francis: Thank you for that.
Senator Patterson: Ms. Sargent, in your department’s summary document, What We Learned, which you’ve just shown us, I noted that on page 5 it outlines the themes that the preambular clauses touch on as “the minimum standards to protect the rights of Indigenous peoples.” However, I also noted that none of the 10 themes included economic reconciliation. We’ve heard from Stephen Buffalo of the Indigenous Resource Council, Dale Swampy of the National Coalition of Chiefs, as well as a coalition of Indigenous business organizations that economic reconciliation is an important theme, and indeed will be key in helping to pay for the work and infrastructure required to achieve better social and cultural outcomes.
Should we not heed these concerns and include an economic inclusion clause to the preamble, since it will be, as you’ve previously said, that
“The preamble will be the context in which the bill will be interpreted and it informs how the bill will be interpreted, the operative provisions.”
Ms. Sargent: Thank you, senator. I will note a couple of sources that may be of help to you and the committee as they consider potential amendments. That includes a note that the preamble does reference the concept of sustainable development and self-determination and self-government, which are all, one would think, key to the overall goal of Indigenous nations wishing to develop their lands, resources and territories. It is key to, of course, economic reconciliation and development. That reference is already in the preamble.
I will note that the What We Learned Report goes on to reference conversations that took place with respect to free, prior and informed consent, if you look at page 17 and following, and also discussions with industry sectors. There’s already quite a bit there that relates to those themes, and they ultimately relate in many ways to lands, territories and resources, which are identified as one of the key themes of the declaration in that report.
Article 23 of the declaration itself speaks to the right to development of Indigenous peoples, so that will also, of course, inform the way in which the declaration is implemented going forward. Thank you.
Senator Patterson: Thank you.
Senator Stewart Olsen: First of all, I want to reassure you that I never hold bureaucracy and bureaucrats as responsible for decisions and responsible for legislation.
Does the minister sign off on your list of proposed consultations before you engage in them? How exactly does that process work? From both of you, please.
Ms. Sargent: Thank you for the question. For the purposes of the engagement we undertook on Bill C-15, yes, the ministers, in particular Minister Lametti, did review the list of parties, nations, rights holders and organizations who were to be engaged on the bill prior to its introduction — actually, on a consultation draft of the bill, I should be clear. This, I think, is a relatively standard practice. It is, as Minister Lametti noted, a process that everyone recognized was taking place under difficult circumstances. That is why, subsequent to introduction, Minister Lametti himself, officials, Minister Bennett and others have been doing ongoing engagement, and those engagements are done with Minister Lametti’s input, indeed often driving that process. Thank you.
Senator Stewart Olsen: Thank you.
Mr. Pattee: Thank you. What I can say, in addition to what Ms. Sargent has said, is Minister Bennett had a number of key groups and organizations that she was particularly passionate about and wanted on the list, including women’s organizations, some of the law student organizations, and the LGBTQI2 organizations. She was vocal, and we made sure those were also included. Thank you.
Senator Stewart Olsen: For the provincial consultations, do you set them up and review the legislation with them before, or how does that work?
Ms. Sargent: Thank you. In this case, there were a series of meetings — they are documented in the What We Learned Report — that were held in the fall of 2020 with provincial and territorial officials, ADMs, deputy ministers and ministers, and with Indigenous participation as well in some of those meetings.
Senator Stewart Olsen: Thank you. I appreciate that.
The Chair: Thank you very much, everyone. I think that exhausts all our questions.
I have a note from our clerk saying that we’ve had 20 hours of panels in this pre-study. We’ve heard from 52 organizations or people who have appeared as individuals, and so far we’ve received 53 official briefs. In a period of five days, we have covered a lot of ground in this pre-study.
I want to thank you, senators, members of this committee and those who have joined us for your hard work and dedication. We’ve had long hours. I have to admit the questions were amazing, and the witnesses, likewise, have submitted great comments for our consideration.
The time for this panel is now complete. I wish to thank Mr. Pattee, Ms. Israel, Ms. Sargent, Ms. Leduc and Ms. Marriott for meeting with us today.
For the information of our senators, the next meeting of this committee will be confirmed in the coming days. The clerk will circulate the details to your offices.
Senator Patterson: Chair, just if I may. As the deputy chair and the critic on Bill C-15, and I’m sure I speak on behalf of the committee, I do want to commend you for the way in which you’ve presided over these hearings.
When we began, I had hoped that we could have a balanced and respectful dialogue in this study in connection with this very important bill, and I think you’ve done your utmost to facilitate that, including foregoing the usual prerogative of chairs to ask questions. That is noted and appreciated. I think we’ve done a very thorough job in the limited time that was available, and I want to thank and congratulate you for that.
The Chair: Thank you, Senator Patterson. I appreciate that, and I appreciate the collegiality and cooperation of all members of the committee.
(The committee adjourned.)