THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, October 26, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:45 a.m. [ET] to study Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts.
Senator Brent Cotter (Chair) in the chair.
[English]
The Chair: Hello, honourable senators. I’m Brent Cotter, a senator from Saskatchewan and chair of the committee. I would like to invite my colleagues to introduce themselves, starting with the deputy chair.
[Translation]
Senator Boisvenu: Senator Pierre-Hugues Boisvenu, deputy chair of the committee, from the senatorial division of de La Salle, Quebec.
[English]
Senator D. Patterson: Dennis Patterson from Nunavut, Inuit Nunangat.
Senator Prosper: Senator Paul Prosper from the Nova Scotia region, the traditional territory of the Mi’kma’ki.
Senator LaBoucane-Benson: Senator LaBoucane-Benson, Treaty 6 territory, Alberta.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Simons: Paula Simons from Alberta, also Treaty 6 territory.
[Translation]
Senator Dupuis: Good morning. Renée Dupuis, senatorial division of The Laurentides, Quebec.
[English]
Senator Jaffer: Welcome, Mr. Obed. It’s always so good to see you. You give so much of your time to this committee. Thank you. My name is Mobina Jaffer.
The Chair: Thank you, colleagues.
Honourable senators, we are meeting once again to continue our study of Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts. For our first panel, our committee is pleased to welcome from the Native Women’s Association of Canada, or NWAC, Sarah Niman, joining us in person. Welcome, Ms. Niman.
We have from the Assembly of First Nations, or AFN, Sara Mainville, Partner at the JFK Law LLP, and Cheryl Casimer, executive member of the First Nations Summit. They are joining us by video conference. Welcome, Ms. Mainville and Ms. Casimer.
Also joining us in person from the Inuit Tapiriit Kanatami, or ITK, are Natan Obed, President — welcome back — and Will David, Director of Legal Affairs. Welcome to you all.
We’ll begin by inviting opening remarks from each of the three organizations — Ms. Niman first. You have approximately five minutes each. That will be followed by questions and dialogue with senators for the better part of the remaining hour. Ms. Niman, you’re welcome to begin.
Sarah Niman, Senior Director, Legal Services, Native Women’s Association of Canada: Hello, boozhoo, honourable senators.
Bill S-13 does not affirm the Indigenous rights contained within the UN Declaration on the Rights of Indigenous Peoples, or UNDRIP. This is a significant barrier to Native Women’s Association of Canada’s support for Bill S-13, as written.
Bill S-13 has been long in the making. In written submissions, in person and virtual consultations with Canada, NWAC repeated its position that a non-derogation clause in the federal Interpretation Act must specifically affirm the rights contained in the UNDRIP.
The country came together over a period of years to table and eventually enact the United Nations Declaration on the Rights of Indigenous Peoples Act in June 2021 with the aim to implement the UNDRIP as Canada’s framework for reconciliation. The Indigenous women, girls, two-spirit, trans and gender-diverse people NWAC represents are now waiting to see whether Canada’s commitment signals an important change in substantive law, as former justice minister David Lametti promised, or vacuous political performance.
The proposed amendment promises not to derogate or abrogate from section 35 and treaty rights. This focus on section 35 does not address Indigenous gender-based disempowerment. Section 35 has not protected Indigenous women from facing gender-specific discrimination within membership, on-reserve housing, governance roles, child and family service provisions and the criminal justice system, among others.
The National Inquiry into Missing and Murdered Indigenous Women and Girls calls upon Canada to implement the UNDRIP to protect Indigenous women from discrimination within law and politics. A non-derogation clause, or NDC, is needed because Canada has repeatedly and systemically failed to honour section 35 and treaty rights. What does the failure to include the UNDRIP in the NDC tell us about Canada’s intentions? Lack of consultation is not an accurate explanation as to why the UNDRIP is not included in the proposed NDC.
We have heard assurances that Bill S-13 promotes compliance with the UNDRIP Act. NWAC is highly critical of this misleading statement. We see no indication that Bill S-13, as written, provides any direction to ensure Canada’s laws are interpreted to be consistent with the UNDRIP.
Therein lies the problem. Leaving Bill S-13 as is maintains the status quo for Indigenous women who face an uphill battle when they want to claim their rights as Indigenous people. Section 35 and treaty rights are often defined through litigation, using narrow tests and on behalf of whole communities. By contrast, the UNDRIP protects and affirms Indigenous people’s inherent rights to self-determination and membership, among other things. The UNDRIP’s 46 articles clearly set out Indigenous people’s inherent rights, meaning they are affirmed by default.
So far, section 35 legal advocacy has been akin to using a sword to fight back against those who violate those rights. The UNDRIP acts as a shield to protect Indigenous people’s inherent rights by affirming those rights already exist without the need to prove them on a case-by-case basis. The sword-and-shield analogy illustrates important distinctions for Indigenous women and gender-diverse people. As a marginalized group, they face a significant power imbalance when they seek to affirm their rights.
NWAC believes it is crucial that a federal Interpretation Act NDC include section 35, treaty and UNDRIP rights in order to breathe life into reconciliation’s promises.
The UNDRIP is not a new human rights treaty, but its application in Canada is only beginning to be tested in courts. For guidance, this committee can look to early case law in B.C. For example, last month, B.C. Supreme Court Justice A. Ross confirmed that the NDC in the provincial Interpretation Act requires interpreting laws in a manner consistent with the standards set out in the UNDRIP.
Justice Ross’s ruling clarifies that when assessing whether a law is consistent with section 35, treaty rights and the UNDRIP, their non-derogation clause is not:
. . . a trailer that is attached to the back-end of the process. Instead, it is an umbrella that covers the entirety of the process.
This early engagement with an NDC containing the UNDRIP tells us that when courts are called to interpret legislation, they must consider the text, purpose and context of a law so as not to abrogate or derogate from any of the rights affirmed in the UNDRIP.
Bill S-13 signals that Parliament is not as serious about doing the work behind reconciliation, but only to say the word for political gain. This committee’s work is therefore an opportunity to make good on Canada’s promise to implement the UNDRIP by ensuring that every time a law is interpreted, it affirms Indigenous peoples’ basic rights — their minimum standards — as codified in the UNDRIP.
Thank you, meegwetch.
The Chair: Thank you very much. Now, I invite Ms. Mainville and Ms. Casimer to address senators.
Cheryl Casimer, Executive Member, First Nations Summit, Assembly of First Nations: Good morning. I am an elected political executive of the First Nations Summit Task Group in British Columbia as well as a member of the B.C. First Nations Leadership Council.
I’m honoured to be able to provide comments today on behalf of the Assembly of First Nations on Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts.
I would like to begin by thanking the standing committee for inviting me to provide remarks and to British Columbia Regional Chief Terry Teegee for asking me to speak on behalf of the AFN in his place as the portfolio holder.
By way of background, the AFN advances the rights and priorities of First Nations across Canada as a national advocacy organization and as mandated through resolution by the First Nations-In-Assembly, which includes advocating for the full implementation of the United Nations Declaration on the Rights of Indigenous Peoples.
I myself have been working towards the implementation of the UN declaration for many years. Nationally, I am a member of the AFN’s ad hoc chiefs committee on the UNDRIP Act. Within my own region, I have also participated in processes regarding the establishment of B.C.’s Declaration on the Rights of Indigenous Peoples Act.
As we work to implement the UN declaration domestically, lawmakers and those who apply laws and policies need explicit interpretive guidance to achieve consistency with the UN declaration.
Section 5 of the UNDRIP Act commits Canada to take all measures necessary to ensure that the laws of Canada are consistent with the declaration. Canada also made a similar commitment when it accepted the UN declaration without reservation at the United Nations in 2016.
As we work to amend the Interpretation Act, we have an early opportunity to begin aligning Canada’s laws with the UN declaration and take all measures necessary to ensure that the non-derogation clause meets the standards set out in the declaration. The AFN shares the perspective of other Indigenous organizations that the proposed language in Bill S-13 does not meet the standards of the UNDRIP. For this reason, we view Bill S-13 as being deficient. Specifically, we are concerned about the absence of a reference to the standards affirmed by the UN declaration.
The rights and principles in the UN declaration constitute the minimum standards for the survival, dignity and well-being of Indigenous peoples all over the world.
As an interpretive aide for the judiciary and legislative decision makers on federal legislation, a non-derogation clause referencing the UN declaration would require every law to be construed as being consistent with the declaration. This is necessary for the implementation of the declaration and meaningful rights recognition.
The AFN proposes that one additional subsection be added to the proposed section 8.3 as 8.3(3), stating:
Every enactment must be construed as being consistent with the United Nations Declaration on the Rights of Indigenous Peoples.
This addition will provide immediate guidance on statutory interpretation of federal laws to ensure that every act or regulation — or any portion of an act or regulation — must be interpreted as being consistent with the UNDRIP.
Including the UN declaration in Bill S-13 would support Canada in taking a necessary measure to ensure that the laws of Canada are consistent with the UN declaration, and with an UNDRIP-focused Interpretation Act amendment, the common law will be guided by what Parliament does here today.
Before I close, I would like to raise a few points regarding process. How we work and live in relation to one another are central underpinnings of the UN declaration. Appropriate and meaningful consultation with First Nations on all matters that affect them is essential and critical for implementation work, including Bill S-13. Obtaining First Nations’ free, prior and informed consent, or FPIC, is a legal requirement of the UNDRIP Act.
I encourage this committee to ask itself what its role is in this work and to be an ally in ensuring that FPIC has always been secured prior to a legislative proposal coming to your table.
To summarize, without explicit interpretive guidance to lawmakers and those who apply laws and policies today, the legislative significance of implementing the declaration might not be experienced tomorrow. Our children and youth will be the ones who will be the most impacted by the UN declaration not transforming and acting as the reconciliation pathway it is intended to be.
I wish to thank the committee once again for this invitation. [Indigenous language spoken].
The Chair: Thank you, Ms. Casimer. I now invite Mr. Obed and Mr. David to present on behalf of the Inuit Tapiriit Kanatami.
Natan Obed, President, Inuit Tapiriit Kanatami: Qujannamiik, thank you. It’s always wonderful to be here in the Senate with you doing such important work. I’m pleased to offer remarks on Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts to ensure that all federal laws must be interpreted to avoid abrogating or derogating from section 35 rights.
Amendments to the Interpretation Act to include a universal non-derogation clause have been a long-standing priority for Inuit. The Inuit Nunangat Declaration signed by the Prime Minister and Inuit leaders in 2017 explicitly recognizes full and fair implementation of the obligations and objectives of Inuit land claim agreements as foundational for creating prosperity among Inuit, which benefits all Canadians. The Inuit-Crown Partnership Committee, which is the process created by the Inuit Nunangat Declaration, commits both Canada and Inuit to take action on shared priorities and monitor progress moving forward.
Among the first priorities identified in the Inuit-Crown Partnership Committee was to amend the Interpretation Act to include a universal non-derogation clause for all pieces of federal legislation. We want to be clear that this is a long-standing Inuit priority, and we support the substance of the legislation as it stands.
However, ITK has serious concerns about how the process for developing this legislation is being portrayed. The legislation was neither co-developed with Inuit nor was it subjected to any consultation and cooperation with Inuit, which is inconsistent with section 5 of the federal United Nations Declaration on the Rights of Indigenous Peoples Act.
The federal United Nations Declaration on the Rights of Indigenous Peoples Act states:
The Minister must, in consultation and cooperation with Indigenous peoples and with other federal ministers, prepare and implement an action plan to achieve the objectives of the Declaration.
The term “consultation and cooperation” in this act has yet to be defined. However, this language does mean that the process of consultation and cooperation in the development and implementation of the action plan is identical for Inuit, First Nations and Métis as it is for other federal ministers.
This is an extremely high bar, and one that Inuit are concerned the government has failed at in this case and will likely continue to ignore as the declaration is implemented — particularly with respect to the implementation of the action plan and with respect to the measures to align Canada’s laws with the declaration.
In conclusion, a universal non-derogation clause has been a priority for both Inuit and Canada for the past six years, and for Inuit for much longer than that. For this reason, ITK offers unqualified support for Bill S-13.
We note that not every piece of legislation needs to be co-developed nor that all federal initiatives should be consistent with an as-yet-undefined legal standard of consultation and cooperation. However, where Canada commits to co-develop legislation or where Canada itself commits to consult and collaborate with Indigenous peoples through our representative institutions, then Inuit have specific and clear expectations about the process of development as well as the process of communicating the outcomes.
Nakurmiik.
The Chair: Thank you, Mr. Obed.
I will now invite senators to pose questions, beginning with the sponsor of the bill, Senator LaBoucane-Benson, followed by the deputy chair, Senator Boisvenu.
Senator LaBoucane-Benson: Thank you, chair.
President Obed, what is the internal consultative process for ITK for you to come to us to say that ITK either agrees or disagrees? What is the process?
Mr. Obed: On any piece of federal legislation or any piece of large public policy that is federal in nature, the Inuit from our four treaty organizations — Nunatsiavut Government in northern Labrador, Makivik Corporation in Nunavik in northern Quebec, Nunavut Tunngavik Incorporated in Nunavut, who will appear at the next panel, and the Inuvialuit Regional Corporation — make up the voting membership of the Inuit Tapiriit Kanatami board of directors. They are democratically elected leaders that serve all populations of Canadian Inuit. They convene at ITK to deliberate and give direction to our institution.
In the case of this particular speech I just gave, this is a process where we are interacting with our Inuit treaty organizations and getting clear direction from their leadership so as to have a national position. That process does take time, and it does require all the elements to make a decision. That’s why proposals and amendments on the fly are not things we can turn around immediately.
Senator LaBoucane-Benson: We heard from other witnesses that they are proposing phrasing on the UNDRIP clause. Do you think the Inuit are ready to accept or support proposed phrasing for the addition of an UNDRIP clause?
Mr. Obed: There has been no consultation within the confines of this particular piece of legislation about that concept and any amended provisions within the act.
Of course, we would consider any proposed amendments and changes, and deliberate and provide our position after, but there are a number of places at the moment where we are pursuing the very same concept that has been proposed here today. Up until today, we had not imagined that this particular exercise with this particular piece of legislation was the place where we would do this work.
Senator LaBoucane-Benson: Thank you.
[Translation]
Senator Boisvenu: Good morning to our guests, and thank you for being here.
In the brief you sent to the committee, you seem quite categorical in stating that this bill does not align with the United Nations Declaration on the Rights of Indigenous Peoples. Have you been consulted about this bill?
[English]
Ms. Niman: Thank you for your question, senator.
Yes, NWAC has been consulted over the past several years on this issue — and broadly — of the UN declaration.
In February 2018, NWAC’s former president sat in front of a House committee debating Bill C-262, saying that NWAC would like to see a mechanism for making sure that UNDRIP can be implemented across all federal laws.
Specific to this bill and to an NDC in the Interpretation Act, NWAC submitted at least four written submissions between 2021 and 2023, very clearly emphasizing that NWAC expects UNDRIP to be included in the non-derogation clause.
[Translation]
Senator Boisvenu: How do you explain that you were consulted on the bill but nevertheless affirm that this bill does not respect the United Nations Declaration on the Rights of Indigenous Peoples? When you were consulted, did the government not listen to you?
[English]
Ms. Niman: I affirm that we have been consulted, but they haven’t responded to what we have been asking — repeatedly.
[Translation]
Senator Boisvenu: So we’re maintaining the status quo. Can you explain to me why we’re going back to the status quo, even with a new law?
[English]
Ms. Niman: Yes, I would be happy to.
Leaving Bill S-13 written as is and relying only on the rights contained within section 35 treaty rights treats gender equality as a given, which may perpetuate gender-based disempowerment. We know that is not the case. The UNDRIP offers specific protections for vulnerable groups within the Indigenous population, including women, and it’s because of those articles contained within the UNDRIP that NWAC’s constituents have asked for those rights to be affirmed and included within the non-derogation clause.
[Translation]
Senator Boisvenu: Do you want this bill amended to truly include the United Nations Declaration on the Rights of Indigenous Peoples?
[English]
Ms. Niman: Yes we would, and we have provided proposed wording on page 6 of our written brief.
[Translation]
Senator Boisvenu: Thank you very much.
[English]
Senator Dalphond: Thank you very much to the witnesses. This is a very important contribution to this bill. My first question is to Ms. Casimer.
Am I wrong to understand from your presentation that maybe consultation was not properly carried, but you are supportive of having a clause, as you read and as the Native Women’s Association is proposing, to include UNDRIP?
Ms. Casimer: Thank you for the question.
I’m here representing the Assembly of First Nations, and as I stated earlier, we are an advocacy organization. The decision about whether First Nations have been adequately consulted is a question that needs to be posed to the rights and title holders. Our mandate on this topic is to advocate for the full implementation of the United Nations declaration and for the free, prior and informed consent of First Nations when laws and policies are being contemplated that will affect them.
I encourage the committee to hear directly from First Nations rights holders regarding their views on this universal non-derogation clause.
Senator Dalphond: But I understand that you concluded your presentation by proposing a subsection (3) to be added.
Ms. Casimer: Yes.
Senator Dalphond: So is it the position of the Assembly of First Nations to add a specific reference to UNDRIP?
Ms. Casimer: Yes, and that is based on resolutions provided by the Chiefs-In-Assembly.
Senator Dalphond: Thank you.
Mr. Obed, I understand that it was not discussed with the federal government and there were no consultations about adding specific provisions dealing with UNDRIP, but based on what you have heard, are you opposed that we have such provisions or do you think that the process must be first complied with before we deal with that issue?
Mr. Obed: At this time, Inuit Tapiriit Kanatami supports Bill S-13 as it is written. If there are amendments that are put forward by this process within the Senate, we will then convene and deliberate upon them, but I’m in no place today to be able to say “yes” or “no” to that question.
Senator Dalphond: I understand from your answer that you’re not opposed if we are going to do an amendment, but you suggest that if we do the amendment that there be some consultations arising from it. That might be between now and the House of Commons looking at the bill because this bill was initiated here.
Mr. Obed: Yes. The principle of the ability for Canada, as a nation-state, to comply with the UNDRIP and to conform its laws and policies to be consistent with the UNDRIP are huge priorities for Inuit and the Inuit Tapiriit Kanatami. On the basis of principle, we are in full support of any path that the Government of Canada can productively take to reach that end.
The concern or qualifier that we have is whether this is the process to do that; is this particular federal legislative amendment process the place to make those positive changes? If it is, then wonderful, but if it comes at the expense of a long-standing Inuit priority, we would prefer there be other paths opened and to let this path go through.
Senator Dalphond: Thank you.
Senator Jaffer: Once again, welcome to all of you. You made such power presentations.
I have so many questions for all of you. I’m not going to be rude, but I almost want a “yes” or “no” answer. Was UNDRIP discussed with you in the original consultations, Mr. Obed?
Will David, Director of Legal Affairs, Inuit Tapiriit Kanatami: If I’m not mistaken, ITK wasn’t involved in the consultations, so no. We proposed this bill as it stands. We didn’t propose any declaration text because the declaration law hadn’t come into effect.
Senator Jaffer: I’m not hearing you properly, I apologize.
Were you consulted about this bill?
Mr. David: In the process that the Department of Justice undertook to develop the specific legislation, no. However, we had been previously working with Canada for six years on this legislation, a universal non-derogation clause. To say that we were consulted with, that we cooperated, collaborated or whatever language the minister or the department were to use is technically not correct. As Mr. Obed has stated, this is a long-standing priority for Inuit.
Senator Jaffer: Mr. David, perhaps I’m not making myself clear. I’m going to ask you as well, Ms. Niman; I know your answer. When the consultations happened, did the federal government discuss UNDRIP with you? No. Ms. Niman?
Ms. Niman: Yes, they did.
Senator Jaffer: They discussed UNDRIP with you?
Ms. Niman: Yes.
Senator Jaffer: And you said you wanted it included as it is included in B.C., right?
Ms. Niman: Numerous times in writing and in person.
Senator Jaffer: Ms. Casimer?
Ms. Casimer: Yes.
The process for the AFN is that it’s driven by regions. Every AFN office in each province was funded to do engagement sessions with their constituents. But AFN, as a whole, is not to be consulted. We are just given direction by the chiefs and assembly by way of resolution.
Senator Jaffer: So your group was not consulted because you’re an advocacy group, is that what you’re saying?
Ms. Casimer: Yes. But we are made up of regions, so it was those regions that were consulted — or at least hopefully they were consulted.
Senator Jaffer: Thank you.
Ms. Casimer, because you are representing the AFN, and Ms. Niman, the Native Women’s Association of Canada, in B.C., UNDRIP is included in the declaration, is it not?
Ms. Casimer: Yes.
Senator Jaffer: So part of the country has UNDRIP included and the rest doesn’t. Is that correct?
Ms. Casimer: Yes.
As far as I know, the Province of British Columbia was one of the first provinces to implement and endorse the United Nations declaration, where we created the United Nations Declaration on the Rights of Indigenous Peoples Act — that piece of legislation. Shortly thereafter, the federal government endorsed and created the federal UNDRIP Act.
Senator Jaffer: Ms. Niman, I want to ask you this: For us to understand, because we don’t work directly with your organization day to day, why is it so important to include UNDRIP?
Ms. Niman: It’s important to the Indigenous women, girls, two-spirit, trans and gender-diverse people whom NWAC represents that UNDRIP specifically be included in this because it provides a clear directive that all laws are to be interpreted in line with every article that affirms a right within the UNDRIP. There are specific articles within the UNDRIP that affirm Indigenous women’s rights as a particularly marginalized group, and it’s that added layer of affirmation that the constituents of NWAC have asked us to advocate for on their behalf.
Senator Jaffer: Thank you.
Senator Simons: It strikes me that one of the problems we have in discussing these issues is that people use the word “consult,” and they use it to mean different things. We have all had experiences — and I’m not an Indigenous leader, but I’ve had the experience of being told by my city council that my neighbourhood was consulted about this. What they meant is thatthey set out notices, had a meeting and talked at the community and didn’t listen to what they said.
I don’t want to extrapolate from my very minor experience to your far weightier ones, but, for each of you, what would appropriate consultation look and sound like? At what point would you feel that consultation was meaningful as opposed to just performative?
Mr. Obed: My mic is on, so I guess I’m first in line.
We’ve wrestled with this from the time that Inuit Tapiriit Kanatami was formed 50-some years ago. The terminology has changed over time. “Co-development” seems to be the newest term that is thrown around as being something that is meant to tell Canadians a story about First Nations, Inuit and Métis being involved in the development of legislation.
But from a legislative, terminology and legal standpoint, we are not in the same place as the messaging. We would like there to be clear, defined terms around what that means. For us, consultation is a secondary hope than co-development and participation. Then, defining those terms again is another exercise.
In this particular process, through the definitions that we have at hand for us, the terms that the Government of Canada has been using to describe the consultation and the co-development are inconsistent with what we believe to be the definitions of those terms. Also, in keeping with a number of other legislative exercises over the last six or seven years, it is inconsistent with the definitions that have been used in other processes.
Senator Simons: Ms. Niman, you said you were consulted, but were you co-developing?
Ms. Niman: I would say that NWAC’s participation in the development of Bill S-13 was responsive. There was back and forth. At two points, draft legislation was put to us and we were asked for our response, to which we repeated again that we would like to see the UNDRIP in it.
I can also qualify that NWAC participated in the development of the UNDRIP action plan, which, as we discussed yesterday, contains specific directives to include an NDC in the Interpretation Act. I would characterize that process as more of a co-development. There were back-and-forth discussions, but at the end of the day — to earlier questions — the question was put to us, but I’m not sure our answer was heard.
Senator Simons: What about the AFN? Do you feel like you were appropriately consulted or was the consultation more passive than active?
Ms. Casimer: Just as I’ve stated earlier, the consultation process lies between the government and the First Nations title and rights holders. We are just an advocacy organization. We rely on what initiatives are taking place at a regional level. That’s where the decisions come to the AFN.
In terms of the experience that I bring from British Columbia, we were in a position where we sat at the table and helped co-develop Bill 41 in B.C. I heard an elder once say to us that consultation is where you sit around and talk and talk and talk, and no decision is made at the end of the day. Consent is when you talk and talk and talk, and there’s an agreement among you at the end of the day.
We would like to really see that happen with the Crown and title and rights holders. We want to get to a point where there’s agreement, and that you’ve received the free, prior and informed consent of those First Nations.
Senator Simons: And do you feel that there was free, prior and informed consent to this piece of legislation?
Ms. Casimer: From the perspective of the AFN, no, we don’t believe that the principles of free, prior and informed consent were followed in the creation of this bill. The AFN advocated that more consultation take place with all First Nations. Further to that, the bill was also tabled without proper information sharing to the AFN or to First Nations.
Having said that, I’m going to take the opportunity to turn to Ms. Mainville from JFK Law so she can add her views on this legislative process.
Sara Mainville, Partner, JFK Law LLP, Assembly of First Nations: I would like to use an analogy that might be helpful for this committee. If you’re thinking about building a house, and you’re the owner of a house, you would want to make key decisions about how the house blueprint comes out. It’s that blueprint process and the design of the house that really is co-development. It’s that type of litmus test that’s important to think about when the Department of Justice or other actors in this government are designing true co-development processes.
[Technical difficulties] First Nations does have a paper on co-development that’s publicly on its website. That’s a helpful backgrounder.
That being said, I don’t want to spend too much time on this. The Assembly of First Nations wants to talk about our proposed amendment because if this proposed legislative reform is about UNDRIP, then it should say it’s about UNDRIP. I say respectfully, our section is very much needed in this round of reform. Without it, as Ms. Casimer said, it’s deficient.
[Translation]
Senator Dupuis: I have a question for Ms. Niman. I understand that Bill S-13 refers to the right recognized and confirmed by section 35 of the Constitution Act, 1982. Section 35 of the Constitution Act, 1982, subsection 35(4), provides for an equal guarantee of rights for both sexes. Notwithstanding any other provision of this act, the Indigenous treaty rights in subsection 35(1) are guaranteed equally to persons of both sexes.
Are you saying that in any case, subsection 35(4) is not even respected and that the reference made in Bill S-13 is not sufficient? The fact that 35(4) has been given concrete form means that you’re saying that we’re not well protected, even with 35(4), which guarantees the equality of both sexes. So we need to add a non-derogation clause with regard to the United Nations Declaration on the Rights of Indigenous Peoples Act.
[English]
Ms. Niman: Thank you for your question. That’s an important touchstone.
Subsection 35(4) was advocated for inclusion in the Constitution by women’s groups, including the Native Women’s Association of Canada. Since its enactment, if it had done what its hope was — that it would ensure substantive equality for Indigenous women — then I don’t think we would be in the position we’re in today where we have a 700-page document from the National Inquiry into Missing and Murdered Indigenous Women and Girls documenting all of the ways in which Indigenous women are not afforded equal treatment under the law and in practice.
One of the differences in application between section 35 and what we hope to see under the UNDRIP, which we all acknowledge is relatively new legislation, is the following: Section 35 provides a framework for jumping through legal tests as defined by the Supreme Court of Canada whereas the UNDRIP affirms those rights as inherent and as minimum standards, grounded in principles of self-determination and land-based connection. So the access point for being able to claim those rights is significantly more accessible to the Indigenous women NWAC represents.
[Translation]
Senator Dupuis: I have a question for the Assembly of First Nations, the AFN. I’d like to better understand the consultation system within the AFN on issues like this.
Ms. Casimer, you referred us to the rights holders as the bodies that had to determine whether they had been consulted, whether they had participated in co-development with the government. Can you explain to me how you define rights holders and who they represent? How is the consultation process articulated within the AFN?
[English]
Ms. Casimer: The AFN represents the First Nations across this country, and within the country, we’re all familiar that we have provinces. Within each province, there is a regional office with a regional chief. In British Columbia, we have B.C. Regional Chief Terry Teegee. His office received funding to hold regional sessions where First Nations title and rights holders, the leaders, chiefs, hereditary — however you want to describe it — came to these forums and had detailed discussions around the United Nations declaration and pieces of legislation such as this in terms of what kinds of impacts they would have on them and what they wanted to see change, if anything.
Those engagement sessions are supposed to take place across the country, so I can’t really speak for every other region except for my experience with British Columbia.
Once that happens, then we go to a full chiefs assembly, we have a conversation there on these issues and we make a decision by way of resolution.
When a resolution is passed, that is the direction provided to the National Chief and to the executive. Then the executive and the staff follow through on that direction provided by resolutions.
If a resolution is passed by a majority, in particular — and hopefully by consensus because that’s what we try to achieve — then it’s an indication of whether those regions had been consulted. If there are issues with the resolutions, then we know that consultation was not adequate enough. I don’t know if Ms. Mainville wants to add anything.
Senator Batters: Thank you to all of you for being here. My question is to Ms. Niman.
On this bill, Bill S-13, The Trudeau government has still not provided our committee with their Gender-based Analysis Plus, or GBA Plus, document. Unfortunately, it’s becoming quite a problem with this government. In fact, our committee just put a strongly worded observation demanding that we receive these GBA Plus documents at an early stage in our report on a bill just last week. The Minister of Justice came yesterday to answer our questions, yet we didn’t have that document to ask questions with then and we still don’t have it now.
Ms. Niman, given what you earlier described on the gender equality issue and what we were just discussing — and given the obvious pertinent information that could be included in that GBA Plus document, particularly for this bill — does it concern you that we still don’t have this document that this government initiated and says it considers important?
Ms. Niman: Thank you for your question. I take your point. I observed during yesterday’s session that there was a request made directly to the Minister of Justice, I believe, on that issue.
I can say that though I don’t have a peek behind the curtain, the Native Women’s Association of Canada has performed its own gender-based analysis. You have the results of that in the form of our written brief. There is at least an opportunity to acknowledge that there was an analysis done. It might not have been done by government, but the information, at least from a culturally relevant position, is there for the taking. So if there are any questions about what our internal analysis discovered, I’m happy to answer those questions.
Senator Batters: Absolutely. Why don’t you go into that a little bit more. It’s nice that we have a GBA Plus document from someone. Thank you for doing that.
Ms. Niman: I’m happy to. One of the things that the Native Women’s Association of Canada is sort of hanging its hook on in terms of consultation is that there is an important opportunity, every time there is legislation impacting Indigenous women, to advance a gender-based analysis.
The reason for that is because for too long, legislation has approached legislative actions with gender neutrality. We know from experience, data, crime rates and discrimination that that’s not the case, that a substantive equality approach to equality for Indigenous women requires specific and pointed attention to the lived and gender-based experiences that form their intersectional identities as Indigenous people.
In the case of the Interpretation Act, when I was explaining this to people who aren’t part of politics and law what the connection was between a gender-based analysis and the Interpretation Act, it’s actually quite significant. The reason that we need an Interpretation Act that qualifies section 35 and treaty rights is because they are so systemically ignored. When we qualify that there needs to be specific attention to those rights and the UNDRIP rights, it puts everybody on the same page and on notice that those rights are going to be affirmed, and that is the expectation.
So the Indigenous women that the Native Women’s Association of Canada represents rely on that repeated reminder to sort of flag that their rights are just as important and require a substantive equality approach.
Senator Batters: Thank you. I appreciate that.
Mr. Obed, being from the ITK, obviously the GBA Plus would have a definite impact on your organization and your members as well. Do you have anything further to comment on with that issue?
Mr. Obed: In response to the Missing and Murdered Indigenous Women and Girls inquiry, Inuit have created an Inuit-specific action plan. We have also worked closely with Pauktuutit Inuit Women of Canada on GBA Plus initiatives and trying to incorporate gender-based analysis into all the work that we do as an institution and all the work that we do with the federal government.
We are still in the early phases of trying to understand what models work best to ensure that an Inuit-specific gender-based analysis lens can be applied to all the work that we do, including our Inuit-Crown Partnership Committee and through the positions that we take on federal legislation. We will continue that work, not only with our own land claim regions but also with Pauktuutit Inuit Women of Canada.
Senator Batters: Thank you.
Senator Jaffer: Chair, I hate to interrupt. With all respect to my friend, to say that the Trudeau government has not provided gender-based analysis I think is stretching it a bit. Everybody here can correct me, but we haven’t had it for the last two times, I agree. But we have had it during the Trudeau government. In fact, it was the first time we did get gender-based analysis. These last two times — and rightly so, we’ve put it on the record, but I think we would be stretching it to say that the Trudeau government has never provided anything.
Senator Batters: I did say that they initiated it as a process, but it has been longer than the last two times. There have been several times where we’ve received it very late in the going, certainly much after the Minister of Justice has come to the committee. That’s why I said that.
The Chair: I think you have each made your points. We want to engage with the witnesses as much as we can. There would be evidence on this point that we could address.
Did we get a complete answer on that? Thank you.
Senator D. Patterson: Thank you. Welcome again, President Obed. Thank you for your clear position in support of the bill.
But I am concerned about the serious concerns you outlined about the process of development of the bill. You referred to section 5 of the UNDRIP Act, which says:
The Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.
So here we have a new law clearly relating to our Aboriginal and treaty rights, a law that, as you point out, has been championed by Inuit. I always want to refer to former senator Charlie Watt, who actually drafted a bill to amend the Interpretation Act which unfortunately died in committee. This committee has studied the notion of amending the Interpretation Act to have consistency in the non-derogation clauses and quoted Inuit leaders. President Cathy Towtongie of the Nunavut Tunngavik Inc. was one of the presenters.
So here we have a bill that was championed by Inuit really for decades, but you have serious concerns about the process for development, even though you support the bill. Could you describe the engagement of Canada with Inuit on this bill?
Mr. Obed: I will give that question over to Mr. David, but on the longevity of it, the first time that I ever presented to the Senate was in 2002 on the non-derogation clause and on Senator Watt’s intervention. It has been a long time. That was 21 years ago, and here we are.
Will David, Director of Legal Affairs, Inuit Tapiriit Kanatami: It’s helpful to keep in mind that when the Inuit-Crown Partnership Committee was created, Inuit proposed and the Crown agreed to make this very amendment to the Interpretation Act. So in a very real sense, this is a proposal from Inuit. Actually, potentially one could look at it as a joint priority that we’ve shared with Canada for the past six years.
The concerns around process and consultation really arise from the language used by the government on the process for development of this particular bill, Bill S-13. Had it not been something that Inuit had proposed and had worked on for the last six years, if it was a new piece of legislation, the process would be remarkably defective. That’s the root of the concern on the process.
The substance of the bill, though, as you very eruditely pointed out, has been a high priority for Inuit for decades now.
Senator D. Patterson: I just want a little more detail about exactly what the engagement was on this bill, please.
Mr. David: Sure. The way we identified it, we have, within the Inuit-Crown partnership, several priority areas. I believe we started with seven. Land claims implementation was one of those priority areas. Within it, we identified joint actions to conduct work to advance what we would characterize as transformative changes.
Within the land claims priority area, one of three core actions related to the development of a non-derogation clause. We negotiated the language within the work plan as well as the work that had to be conducted in order to, again, develop helpful, acceptable language to ensure that the Crown understands where Inuit are coming from in terms of the benefit of the language as well as in the act, and then finally also grappling with and managing our own expectations on timelines in terms of the existing non-derogation clauses.
That work between the Inuit and the Crown is not easy. Collaboration is extremely difficult, so it does take quite a bit of time, but we would meet in working groups intersessionally. We would meet with senior officials and senior executives in Inuit treaty organizations and assistant deputy ministers. Then we would also advance these three times a year to meetings with ministers if we were hitting roadblocks that we were not able to get around or otherwise required a decision from ministers or Inuit leaders, including the one meeting with the Prime Minister.
As I said, this is an item that has been featured first on the agenda for every Inuit-Crown Partnership Committee meeting I have been a part of.
Senator D. Patterson: Were you engaged on this act, this bill? That is really what I’m after, directly.
Mr. David: On the specifics of Bill S-13, the website process, the exchange of documents back and forth, ITK was not involved in that process, no.
However, I would like to think that the generation of the idea that led to the creation of the process was driven by ITK.
Senator D. Patterson: Thank you.
Senator Prosper: Thank you, panellists. I have a question that I am quite curious about, and I’ll just pose it. It’s related to the relationship or the consistency that exists between section 35 and the UNDRIP document.
I’m curious how that works together. I think, Ms. Niman, you provided a tangible way that the two can come together, and I’m curious about other perspectives on how one informs the other, the consistency that exists there and, by extension, how that informs consultation.
Typically, within a section 35 analysis, one tends to think about it in terms of a spectrum, but if we look at UNDRIP, we hear FPIC — free, prior and informed consent — and I’m just trying to nail down a bit where consultation fits. Does it fit with FPIC? Does it have to be appropriate and meaningful?
I put that out there. Thank you.
Ms. Niman: Thank you. The relationship between section 35 and UNDRIP, I think, was best characterized as UNDRIP breathes life into section 35. It is Canada’s framework for reconciliation.
As Professor Metallic said yesterday, they can operate in different ways, but in no way do they abrogate or derogate from each other, and that’s what is important to recognize.
In terms of what standard that sets for consultation, the UNDRIP sets a bar at free, prior and informed consent. I believe the pages within the UNDRIP Action Plan go into what the consultations with Indigenous organizations and communities interpret that to mean, but our courts have not interpreted what that means yet.
Mr. Obed: As somebody who was in the room when Minister Bennett gave the unqualified support for Canada in 2016 in New York, I also heard her talk about this unlocking potential and using the full box of rights analogy, basically stating, “Mission accomplished; now Indigenous peoples have a full box of rights in the country.”
This is not a position of ITK at all, but to me, logically, that would happen if the Constitution was reopened and UNDRIP was put in the Canadian Constitution. Since that is not the case, we are now all struggling with how to do something that is a synonym of that exercise.
In many cases, it is hampered by the very ad hoc nature of the way that different federal departments or different federal ministries imagine this exercise at all. We are worried, at this point in time, that the federal government thinks of UNDRIP more as a principles-based declaration than a rights-based declaration, and we worry about that based on the evidence that we are seeing about the response to the act and the implementation of the act, which is why these conversations are so necessary.
But it’s the instrument that we used to get to that space of the recognition of our existing rights and their application in this country that is the conversation of our lifetimes.
The Chair: Thank you.
Could I invite Ms. Casimer, if she would like to comment on this point?
Ms. Casimer: Thank you. I’m going to defer this to Ms. Mainville.
Ms. Mainville: Thank you. I think that’s a major conversation happening with First Nations across Canada on the United Nations Declaration on the Rights of Indigenous Peoples Act and whether or not the non-derogation clause, which will be repealed in that act — section 2(2) — actually anchored the promise and transformation of UNDRIP to section 35 in some common law tests that are problematic and, frankly, colonial. That is the Sparrow justification test and the Van der Peet test to prove the Aboriginal right to self-government.
Certainly, those have been on the common Indigenous agenda as a shared priority since the 1982 and 1985 constitutional discussions, and that is one of the reasons why we really advocate for this section 8.3(3) amendment to this bill so that there is clarity that this congruency to federal legislation must be in compliance with the United Nations Declaration on the Rights of Indigenous Peoples Act, and that it is so important and so crucial. That way we get back to the transformational promise of self-determination in Canadian law-making space for inherent jurisdiction Indigenous laws.
Senator Clement: Such helpful conversation. Thank you so much for all of your work and for the life experience that you breathe into your work as well.
Thank you to Senator Prosper for that last question. It got me thinking about relationships.
We have had conversations today about the meaning of consultation and moving towards the goal of co-development, agreement and consent. In my limited experience — developing experience — that only happens when governments are actually building relationships or when people are building relationships with organizations and with First Nations communities.
My question is: Are your organizations and your communities in relationship-building opportunities with the federal government? Has that evolved? Do you feel there is a shift towards that? That’s my question.
Ms. Niman: Thank you. I’ll answer briefly to give my other panellists time.
The answer is sometimes. The government adopts a distinctions-based approach, and so when they decide that an action is going to have a necessary impact on Indigenous women, based on their qualifiers, then NWAC is invited to the table.
Senator Clement: Thank you.
Mr. Obed: We are in a time that is unprecedented in Canada’s history for the ability of Inuit to work with the federal government and for our voices to be heard. It remains to be seen what we do with that time.
Ms. Casimer: I can speak from my own experience in British Columbia. The relationship we have with the federal government is improving. There still needs to be a lot of work, of course. There still needs to be discussion around what co-development means, what true consultation means and what meaningful engagement also means, but I think that we’re moving down the right track.
The difference between what the province of British Columbia has compared to the rest of the provinces and the regions is that the provincial government made a commitment of creating and establishing a declaration fund, understanding that the capacity issues within our respective communities are quite limited and that we’re being pulled in all different directions, particularly this year when we’re dealing with the aftermath of unprecedented fires, drought and flooding. That took into consideration the extent to which First Nation title and rights holders were able to be fully engaged.
If there was the establishment of a federal declaration fund, First Nations would be able to draw down on that fund to be able to fully participate in discussions around amendments and changes to legislation to ensure that it aligns with the declaration. That will be necessary.
At the national level, we know that more work needs to happen. There is still this notion of coming to the table after the fact when something has already been developed, and you come to the table and say, “We would like to engage with you at this point and time.” That’s not when things start. Things start at the time you start thinking of having that idea of establishing or creating something and bringing the title and rights holders to the table at that point. When we get to that point in time in our history, then we will be going down the right path.
Senator Clement: Thank you.
The Chair: I think that will bring the questioning to a close, colleagues.
Let me take a moment to thank the witnesses who have appeared before us today. It may seem, especially for those of you who have been here regularly, that this is a regular experience, but you have helped us enrich our understanding of some very important points on this important bill. I want to extend a special expression of appreciation on all our behalf for doing that.
If you haven’t already heard, it will be of interest of you to know that the Prime Minister has nominated Chief Justice Mary Moreau, Chief Justice of the Court of King’s Bench in Alberta, to fill the vacancy in the Supreme Court of Canada. It will be the first time, assuming she is appointed, that the Supreme Court has had a majority of women on the court. I thought it’s worth noting, in some respects, a historical moment.
Colleagues, on our second panel, we are pleased to welcome, from the Nisga’a Lisims Government, Eva Clayton, President. She is joining us by video conference. Welcome, Ms. Clayton. I saw you had the opportunity to observe the first panel. Welcome to having a speaking role in this one.
Also from Nunavut Tunngavik Incorporated, Marie Belleau, Alastair Campbell and Jim Aldridge. Ms. Belleau is Managing Legal Counsel, Mr. Campbell is Senior Policy Advisor and Mr. Aldridge is Legal Counsel. They will all be joining us by video conference.
We are about to begin with opening remarks, but just before we do Senator Batters has a small intervention.
Senator Batters: I just wanted to say that I have a brief comment to make about the Bill C-48 report. I can wait, of course, until after these witnesses have concluded. But I would just like you to save a tiny bit of time at the very end.
The Chair: We’ll do our best. You’ll know we are working to a bit of a deadline since we have another room to go to just before 2 p.m.
We’re going to invite Ms. Clayton and Ms. Belleau to provide opening remarks of approximately five minutes each, followed by questions from senators.
Ms. Clayton, the floor is yours.
Eva Clayton, President, Nisga’a Lisims Government: Thank you. Good morning, chair and honourable senators. My name is Eva Clayton. I’m President of Nisga’a Lisims Government. I’m calling in from our Nisga’a territory, located in northwestern B.C.
The Nisga’a Treaty, the first modern treaty in British Columbia, came into force in May 2000. In 2003, all the Indigenous groups who had entered into comprehensive land claims agreements to that date formed the Land Claims Agreements Coalition, or LCAC. Since its beginning, the members have asked Nisga’a Lisims Government, or NLG, and Nunavut Tunngavik Incorporated, or NTI, to co-chair the coalition. We have appeared together before parliamentary committees on a number of occasions, and I’m happy to accompany the NTI representatives once again today. Our general counsel, Jim Aldridge, is also here.
We are very excited at the prospect of Bill S-13 finally becoming law. The bill has the unequivocal support of the Nisga’a Nation, and we congratulate the government for finally agreeing to proceed with what has been, since the beginning, an Indigenous-led initiative. We would not wish it to be delayed.
It has been more than 20 years since NLG, NTI and others began our efforts to persuade Canada to amend the Interpretation Act so as to include a clear and effective non-derogation clause that will apply to all federal legislation and to make it clear that Parliament intends for all of its laws to uphold our rights and not abrogate or derogate from them. This became a particular concern to us in the early 2000s when we learned of a new formulation of the non-derogation clauses, which had been used since the 1980s and most of the 1990s. Instead of not abrogating or derogating from our rights, the new formulation purported not to abrogate or derogate from the protection of our rights provided in the Constitution. But this made no sense to us. How could any legislation interfere with the protection given by the Constitution? It meant that these provisions had no effect at all.
Accordingly, Nisga’a Lisims Government and NTI, through our legal representatives, appeared in front of this very committee in 2007 to urge the return to an effective approach to non-derogation, to propose eliminating the need for having to request non-derogation clauses on an ad hoc basis for each potentially problematic bill by amending the Interpretation Act and to suggest positive wording requiring laws to be interpreted as “upholding” our rights rather than abrogating or derogating from them.
We were extremely gratified when the committee unanimously agreed with our proposals and included them as its first recommendation. Unfortunately, the government of the day did not take up the committee’s recommendations. Therefore, together with the rest of the LCAC and other modern treaty holders, we continued to urge officials and politicians of the value of embracing the committee’s recommendations.
The next concrete opportunity only arose in 2017 when Prime Minister Trudeau established the working group of ministers to review laws and policies to meet the promise and purpose of section 35 of the Constitution Act, 1982. We urged that working group to take up this committee’s recommendation for a non-derogation provision in the Interpretation Act. In about 2000, the Department of Justice finally began what turned out to be a very lengthy process of consultation and engagement with others.
As far as we have been made aware, while there have been differences as to the precise wording and as to whether this should be tied to other initiatives such as the UNDRIP implementation, there has been little or no opposition to the fundamental proposal. Indigenous governments and organizations broadly agree that we should no longer have to worry about studying every bill for potential infringements of our rights and then have to lobby for last-minute changes, such as our friends at NTI were able to achieve with the Fisheries Act. This is what this committee recognized 16 years ago. We trust you will recognize it today.
In closing, I recount this history in order to underline the fact that this bill is before you today largely because of the efforts modern treaty holders have been making for almost two decades and to urge you to embrace an approach that this committee unanimously recommended almost 16 years ago.
Thank you for the invitation to appear before you today.
The Chair: Thank you, Ms. Clayton.
Marie Belleau, Managing Legal Counsel, Nunavut Tunngavik Incorporated: English will follow.
[Inuktitut spoken]
[Translation]
Good morning, senators, my name is Marie Belleau, I am Legal Adviser and Managing Legal Counsel for Nunavut Tunngavik Incorporated.
[English]
Thank you for introducing my colleagues who appear on behalf of NTI as well — Alastair Campbell and Jim Aldridge.
Thank you for the invitation and opportunity to testify at this committee on this very important topic. I want to be clear at the outset that NTI offers its full support for the proposed amendment. We bring forward this position having been involved in the issue for many years. As an example, NTI appeared before the Senate prior to its release of this committee’s 2007 report on non-derogation clauses relating to Aboriginal and treaty rights. This was 16 years ago. NTI very much supported the conclusions of that report. We were disappointed that the report was not acted upon at the time.
More recently, we have pursued the objective of a non-derogation clause within the Interpretation Act through the Inuit-Crown Partnership Committee and the Land Claims Agreements Coalition. NTI has been part of this initiative, which started several years ago, and we appreciate that the government has responded to our stated concerns.
The concern of Indigenous peoples is that laws may be readily interpreted as showing a parliamentary intention to minimize or diminish our rights rather than to respect and uphold them, despite their constitutional recognition and affirmation. In recent years, there has been non-derogation language included in some acts but not in others, and even when they appear, there has been a variety of formulations with uncertain impacts. This ad hoc approach was qualified as unsustainable in the 2007 Senate committee report. We have been forced to review individual statutes and argue for the inclusion of non-derogation language on a case-by-case basis. We can provide examples if requested.
Like all interpretive rules in the Interpretation Act, Bill S-13 will provide a lens for the preferred, consistent, clear and proper understanding of proposed new laws in the event they contain ambiguities as to their intended impact or reach. It will also minimize the need for Indigenous organizations like ours to have to scrutinize every bill that is introduced into Parliament and try to secure the inclusion of appropriate non-derogation language.
This version of the proposed amendment is the product of years of wordsmithing. NTI’s view is that the current bill offers a sound, workable and beneficial phrasing for a standing rule of interpretation. It is also a more positive formulation of the intent of Parliament and more in line with the necessary rights-recognition approach.
To summarize, Nunavut Tunngavik urges you to put this language in the Interpretation Act and repeal the many other versions found elsewhere in legislation, with the exception only of those versions applying to a particular Indigenous people at their request and which they wish to retain.
I would like to end by recognizing the contributions of former senator Nick Sibbeston from the Northwest Territories as well as fellow Inuk and former senator Charlie Watt in this important endeavour. I would also like to acknowledge and thank NTI leadership as well as my colleagues Alastair Campbell and Jim Aldridge, who are on the panel with me today, as well as retired NTI legal counsel John Merritt who has assisted in consistently advancing this cause going back to the early 2000s. We wish to say their efforts, as well as those of many other Indigenous peoples and Indigenous groups in Canada, have finally come to fruition. It is our hope that we are finally close to that stage now.
The three of us are available for any questions. Nakurmiik, thank you.
The Chair: Thank you both. I will invite questions from senators now, beginning with the sponsor of the bill.
Senator LaBoucane-Benson: Ms. Belleau, we have heard a lot — I don’t know if you have been following the panels — from people and groups that would like to see this bill amended to include an UNDRIP clause. I’m very grateful for the history that you gave us about all of the work that NTI and the Nisga’a have done to get this bill to where it is.
Would you support the inclusion of an UNDRIP clause? Do you think we would have to go back and consult some more? If we do have to consult some more, would you like this to go through and then do that consultation? How would you see us moving forward if we’re really trying to consider all of the people who have given testimony on this bill?
Ms. Belleau: Thank you for the question.
We have been listening and thinking about this as well. It’s obvious that UNDRIP is an important human rights instrument that took decades to achieve. We finally have the UNDRIP Act in Canada. We have the UNDRIP action plan. There hasn’t been any formal consultation work yet with NTI on the UNDRIP action plan’s second bullet, which speaks precisely to including language in UNDRIP here, so we can only provide a preliminary view at this stage. We haven’t necessarily seen any text around this, been officially consulted or asked to comment on that specifically.
In principle, it’s a good idea because anything that can be put in place to advance and give more effect to UNDRIP is a good idea; it’s necessary. Even if it’s as an interpretive tool, that would be welcome. Seeing as NTI and the Land Claims Agreements Coalition have been advocating for this non-derogation clause for decades now, we would wish to see this proceed as soon as possible.
We would welcome any opportunity to do a review and provide a formal position on any proposed amendments to the Interpretation Act around UNDRIP.
The Chair: Would you like Ms. Clayton to speak to this?
Senator LaBoucane-Benson: Sure.
The Chair: Do you have a contribution to the senator’s question, Ms. Clayton?
Ms. Clayton: Thank you for the question. I will refer to Mr. Aldridge, who has been doing the work on a technical level.
Jim Aldridge, Legal Counsel, Nunavut Tunngavik Incorporated: Thank you.
So that senators are aware, I think it has been made clear that I have had the privilege of representing both NLG and NTI over the years. I’m here on behalf of both of them today.
The position that has been advanced, senator, by both of NTI and NLG — and other members of the coalition — is that it’s a priority to move forward with this amendment in relation to the Constitution as soon as possible. “As soon as possible” seems almost ironic given how many decades we have been at it. I recall appearing before this committee in 2007. Those events have been recounted to you.
The concept of adding an additional subclause that refers to UNDRIP is one that both have said is a very interesting idea. It depends upon the wording, and there hasn’t been consultation on the wording. We have heard a couple of suggestions that have been made. One was read out today by our friend from AFN. There are others that have been referred to but that we haven’t seen. These are important questions.
The language that is in Bill S-13 has been subject to consultation for three years at least, so it’s very difficult to respond from the hip during a committee hearing as to wording that has been proposed.
Both NLG and NTI have said their interest in the concept — the answer to your question is and my instructions are that they would both prefer to see this bill pass and then do the necessary work to make sure that any language about UNDRIP has the appropriate precision, clarity and meets everybody’s needs. That’s the way they would prefer to go.
Senator LaBoucane-Benson: Thank you for suggesting that.
[Translation]
Senator Boisvenu: I’m also going to welcome our panellists. I’m going to put my question to Ms. Clayton and to Ms. Belleau, perhaps starting with Ms. Belleau.
Our witnesses on the first panel were disappointed that the United Nations Declaration on the Rights of Indigenous Peoples was not included in this bill. They were also critical of the quality of the consultations in which they had participated.
Do you feel the same way about the declaration? Did the consultation you witnessed ensure that all your concerns were incorporated into the bill?
Ms. Belleau: Thank you for the question. On the subject of the UN Declaration on the Rights of Indigenous Peoples, we’ve already answered the question to some degree, unless there’s anything else you want to know. I think we’ve expressed our position with regard to adding text about the UN Declaration.
On the other aspect of your question, as to consultation, I would almost dare to say that we are potentially in a unique situation compared to other groups. That remains to be seen, but as I said in my presentation, and as my colleagues on the panel have said today, we’ve been making efforts for decades. Nunavut Tunngavik Inc. has been asking for this universal clause in the law for a very long time. It’s a response to Nunavut Tunngavik Inc.’s efforts to get to where we are today.
It’s kind of the opposite of saying, “Were you consulted?” We’ve been putting forward the need for this clause in the law for a long time. I wouldn’t say we’re unique; there are other organizations that have highlighted problematic language in other laws. We’re happy with the amendments right now and the way the law is written. We’re satisfied and we support this version.
[English]
Ms. Clayton: Thank you. I won’t repeat what has already been stated. My colleague Mr. Aldridge has already spoken about UNDRIP.
I do want to speak about the uniqueness of the Land Claims Agreements Coalition. We are a coalition of modern-day treaties, and for me, the consultation process should be government to government.
It is important that we make that distinction. We have to begin to look at how we consult, discuss and talk about legislation. A lot of work has been done on this over many years — two decades, in fact. As I’ve stated, the Nisga’a Nation would like to see Bill S-13 proceed, and then we can look at UNDRIP.
Senator Klyne: Welcome to our witnesses. This question is directed at ITK and Ms. Belleau.
The federal Interpretation Act is a technical statute providing a uniform standard for the interpretation of all federal legislation. By including an NDC in this act, all federal laws would be read as including an NDC. Considering the several measures already in place — this is two parts of a question here — what are your thoughts on this additional measure? What will the impact be of the adoption of Bill S-13 on Aboriginal rights and reconciliation, in your opinion? Will it merely or significantly improve the situation?
Ms. Belleau: I’ve already expressed that, even on a practical level, given that our organizations have limited resources, it is very time-consuming to have to examine every single bill and to make sure that the language is respectful of section 35 rights. Even on a practical level, it would make a big difference.
It’s an interpretive tool. If there’s any ambiguity, I think to give force to our already established and recognized rights, it doesn’t add to the substance of our rights. It’s not to top-up our already recognized and affirmed section 35 and treaty rights, but it would be an interpretive tool if there is ambiguity.
There are always many ways of seeing a particular situation and seeing a different approach, or in this case, how to interpret legislation. It is necessary to ensure that and have that in place tomake it absolutely crystal clear that all legislation has to be interpreted with the view of upholding our rights.
As we’ve mentioned, it’s not just a question of not derogating from our rights but to uphold them. It’s essential. In the context of reconciliation, it’s a more respectful and positive way that would be very clear that our rights that are already enshrined have to be upheld.
Senator Klyne: Thank you for that. You made reference to the necessity of being crystal clear. I was going to ask, do you see any interpretation challenge of the provision in the Interpretation Act? On the note of crystal clear, would that require something like public awareness and education, not just through the legal community but broadly?
Ms. Belleau: Most likely. We face challenges every day as Indigenous peoples and Indigenous groups in dealing with government and with all kinds of external parties. The more awareness and education that could be brought to inform — all Canadians should be aware of this. All civil servants should be aware of Indigenous rights. Canadians also have to uphold all of these rights.
Yes, I think that if there is a possibility of bringing this to light, this interpretive tool would be helpful. When we see the text of legislation, you can ask various people how they read it. But saying this is your foundation, this is how you have to read this as upholding section 35 rights, as upholding Indigenous rights, and if there are ways of assisting whoever is in a position to have to implement legislation or interpret it, that will be helpful.
Senator Klyne: Thank you for that observation.
[Translation]
Senator Dupuis: Thank you to the witnesses who are here today.
My question is for Ms. Belleau and Ms. Clayton. I think I can summarize your position in two points. On the one hand, you tell us that the coalition of groups with modern treaties has been working for decades to obtain a general interpretation clause for all federal statutes. On the other hand, the coalition expects the Senate, at least our committee, to be consistent with its own 2007 recommendation, following your representations. Do I understand your position correctly?
Ms. Belleau: Yes. I represent Nunavut Tunngavik Inc. I would not venture to speak today on behalf of the coalition. For a very long time, we’ve wanted to highlight the problems that existed in different laws and different versions, for example with regard to the language and terminology used. Little by little, we’ve achieved this, with the version before us today.
Your second question concerned logic. Indeed, in 2007, we were in favour of the report’s conclusions. Then, for one reason or another, the recommendations were not acted upon. We continue to support the recommendations of the 2007 report. The language today is a little different, but we’re happy with the wording.
[English]
Ms. Clayton: The Land Claims Agreements Coalition is made up of modern-day treaties, as I stated, that reached those agreements at that time in 2003. It has been a long time. A lot of work has been done over two decades, as has been mentioned. Not only the Interpretation Act, but we also want to make sure that all parties, whether it’s the general public or the Government of Canada, understand modern-day treaties. It’s on that basis that we’ve been asking and lobbying for government-to-government relationships because we’re distinct from the general First Nations organizations. We are quite satisfied with Bill S-13, as I’ve stated. Thank you.
Senator Simons: President Clayton, you may or may not remember this, but I had the pleasure of meeting you in Terrace, B.C., a few years ago when you testified before a different Senate committee about Bill C-48. At the time, I recall that you felt strongly that the government had not consulted appropriately with the Nisga’a Nation about Bill C-48. I wonder if you can tell me how these consultations were different in nature and scope from the ones you did with Bill C-48. Do you feel like the government is getting better at this?
Ms. Clayton: For that particular bill, the government and the modern-day treaties have to look at improving those relationships. I can’t say offhand that it has really improved, but we have been working at it steadily. We continue to pursue the government-to-government relationship. The messaging is getting across somewhat, but we need to have an established process. Right now it’s ad hoc. Thank you.
Senator Simons: There may be some Canadians who are not familiar with the idea of the modern treaty or of the kind and nature the Nisga’a Nation has. Can you explain to people what makes your form of treaty different from Treaty 6, Treaty 7, Treaty 8, the Prairie treaties?
Ms. Clayton: Thank you for the question. I will defer that to Mr. Aldridge.
Mr. Aldridge: Thank you for the question, senator. The phrase “modern treaties” refers, up until now, to all of the comprehensive land claims agreements entered into since 1975, the first being with the James Bay Cree and Inuit of northern Quebec. Then all of the land claims agreements since then that were given both retrospective and prospective constitutional protection by section 35(3), in the first constitutional amendment. Because it said treaty rights include rights that exist or may be acquired by way of land claims agreements, then that was the constitutional imperative to regard these agreements as being treaties.
The reason they’re called modern treaties is exactly because they’ve been since 1975, which is getting to be a while ago now. But as compared to the historical treaties — which go from pre-Confederation up to and including the numbered treaties on the Prairies, up until Treaty 11 — that’s the distinction between the modern treaties, originally known as land claims agreements and referred to as land claims agreements in the Constitution.
Their territory covers more than 40% of the land mass of Canada. It’s a huge amount. The nature of the coalition is such that it is not an organization. It’s a coalition. There are no elections, the NTI and NLG have been asked each year to be the co-chairs. Other than that, it’s working together on shared issues relating to the issue of modern treaties.
Senator, you raised an interesting point about the Oil Tanker Moratorium Act and Bill C-48 that you appeared on. You’ll probably recall that at the end of that process, that committee made a recommendation, in an effort to address Nisga’a concerns, by putting a non-derogation clause into the bill. The problem is that the non-derogation clause that was ultimately inserted in the bill is the one that President Clayton referred to already as being ineffective. It has this language that was used during the late 1990s that no longer referred to not abrogating or derogating from rights, but rather not abrogating or derogating from the constitutional protection of rights, which the distinction is obvious. And the latter we’ve always said has no effect.
Ironically, after this committee made its recommendations in 2007, which started out as an analysis of that language, that language wasn’t used again until — in the life of this government — when my two clients and others had raised again the issue of a universal non-derogation clause. Suddenly bills were passed that used, if I can use this language — if I can be colloquial for a second — the bad non-derogation language. That’s what got into the Oil Tanker Moratorium Act. It also got into the Impact Assessment Act, and associated acts refer to not abrogating or derogating from protection.
Senator Simons: Thank you.
Mr. Aldridge: I’m finished. The Fisheries Act had to be changed. It’s the ad hoc nature of it that we hope this bill will correct.
Senator Simons: Thank you. That’s a very helpful history.
Senator D. Patterson: With friends that I’ve worked with over the years on this panel, I see this bill as being championed by Inuit. I know the Land Claims Agreements Coalition and I know President Clayton over the years. Everybody we’ve heard from in this committee is saying this bill is long called for and long-awaited. It’s great that it’s before us, and I support the bill.
We have heard witnesses suggest that an amendment to this legislation should be added which would recognize UNDRIP. I know UNDRIP is a very important but hugely complex, seminal piece of legislation which is making, it seems, slow progress through the action plan.
I’ve heard no one speak against Bill S-13. There are suggestions we should add to it. But I don’t think anyone is against Bill S-13. We heard President Obed this morning say he supports the bill as is.
Let me be candid. I fear that we will be adding a layer of complexity, and perhaps even controversy, if we add an amendment relating to UNDRIP, even with the best of intentions. My feeling is let’s fix this long-standing issue, which we’ve been waiting for for decades, with the Interpretation Act standardizing the non-derogation clause, and send the bill so we can have swift passage in the House of Commons.
I wonder if any of you would have comments on this view of mine that we should get this fixed before we deal with the more complex issue of figuring out how UNDRIP applies to all Canadian laws.
Ms. Belleau: Senator Patterson, you summarized the crux of our position before this committee today.
Senator D. Patterson: Thank you.
Ms. Clayton: Thank you. I totally agree with Senator Patterson, well put. Thank you.
The Chair: Thank you both.
[Translation]
Senator Clement: Thank you to all the witnesses for your work. My question is for Ms. Belleau.
When we talk about consultations and working with organizations and communities, it really puts a lot of emphasis on the resources of your organizations and your communities. The previous witness talked about a fund for indigenous organizations. How much pressure are you under? With all these consultations, the co-development work, it’s always on your back, on your shoulders; you have to do all that.
Ms. Belleau: Yes. I don’t know if I can comment specifically on the fund; you mentioned another panellist possibly. But in general, yes, consultation is essential. It’s asked for in every way every day, but at the same time, it requires a lot of resources, time, energy and so forth.
As the organization that represents the Inuit of Nunavut, we also have our own consultation to do. In Nunavut in particular, we have three regional Inuit organizations. We have our own governance dynamics and so on. Sure, what’s on our plate, every day, is huge, but we never want things that affect us to happen without us.
Today, as a lawyer, as an Inuit person, as an indigenous person, being able to represent what we think when it comes to something so important, that affects us, as indigenous people, is essential. You can’t do things that affect us without us; it’s essential. Sure, it takes a lot of resources, a lot of time and energy, but we’re here to do this kind of work. So that’s what we’re here for. It’s absolutely essential.
Senator Clement: Thank you for saying so. Thank you for your work.
[English]
The Chair: We have a brief opportunity for a second round. My suggestion is we try to conclude, at the latest, by 1:45 p.m., given other commitments. There is only one person for the second round.
Senator Jaffer: Ms. Belleau, I’ve been listening to you carefully. You said, “We don’t want any decisions to be made without us.”
This morning, we had NWAC in front of us. They explained, if I understood well, that UNDRIP needs to be part of this legislation. Would you consider NWAC as part of your decision? Not in your group, but the women at NWAC would also have a say in this. Would you agree with that?
Ms. Belleau: Absolutely. The thing is that the text before us in Bill S-13 currently doesn’t have any amendments or inclusion of UNDRIP. We don’t have something to work with at this moment.
What we’re being consulted about or in NTI’s position, what we have advocated for over so many years, is incorporated right now. But without any text, without something to work with right now, it’s just very difficult. This was the angle and the intention that we brought with us to the Senate committee on the current bill in front of us.
We are content. We are satisfied with what is currently in this bill, which essentially adds a universal non-derogation clause, which is very important and essential, in our view, to have incorporated in the Interpretation Act.
We’re not speaking on the idea of UNDRIP. The action plan, for example, NTI has been consulted, and we have some engagement on certain actions —
Senator Jaffer: I apologize. I don’t mean to be rude and cut you off, but we’re running out of time. I have another quick question.
The fact is that UNDRIP was not put in front of you by the government. Is that what you’re saying?
Ms. Belleau: We’re here to speak to Bill S-13 as it is now. What we’re saying is that we’re satisfied with it, yes.
Senator Jaffer: Thank you. I apologize for cutting you off.
The Chair: Thank you to all of you. That concludes our round of questions and conversation with you. I want to extend my thanks for joining us via teleconference and assisting us with our deliberations. It’s been a delightful conversation and informative for all of us. All the best for the day.
We will not adjourn the meeting, but bring this round of discussion to a close. My understanding is that before we adjourn, we are going to discuss something Senator Batters wishes to raise and perhaps a small item that Senator Patterson wishes to raise.
Senator Batters: Thank you, chair. I appreciate that.
The Bill C-48 report that was just tabled in the Senate the other day, there was a considerable summary of evidence section in this report which never came to this full committee even though there wasn’t a need to table that report on an absolutely immediate basis. I found that that was problematic because in that Bill C-48 report, it contains at least a couple of errors: one grammatical, one more substantive. I also submit that the summary of evidence lacked some balance that we heard in the committee testimony for that bill study. As well, the summary of evidence does not state early on, even in a brief way, what Bill C-48 really does. It does not explain reverse onus and what the limitations of those provisions are, even briefly.
Regarding the errors I noted, the last sentence in our last observation about GBA Plus, it was added after our full committee dealt with it, and that last sentence, though, is not actually a complete sentence as it’s written.
The more substantive error is that Senator Clement’s amendment is described in the Bill C-48 report as having passed “on division,” but that’s wrong. It was actually passed by a recorded vote. Eight voted for it and five voted against it.
Steering committee was certainly given the regular authorization to correct small errors and typos, but not to entirely draft and then table in the Senate a significant summary of evidence without any approval of our full committee.
Over the last couple of years, our Legal Committee has much more rarely being doing summaries of evidence for bills that we study, but at that last meeting that we had on it, I asked that we have a more robust summary for this one since the House of Commons committee, in particular, had not studied Bill C-48. I certainly, though, did not expect that that would be the product, lacking some balance and with some errors, and I didn’t expect that it would be tabled in the Senate without our full committee’s scrutiny and approval.
I submit that to you for your consideration, chair.
The Chair: Thank you. Any comments on that?
All I can say is that we had been encouraged to produce a more fulsome report. We will review the suggested errors in the report and bring those to the attention of the Senate, if necessary.
The report itself was circulated fully among steering and reviewed and essentially approved by them, but I take your advisement with respect to the desire to be more fully engaged in fulsome reports, Senator Batters.
[Translation]
Senator Dupuis: Can I know exactly what “in practice” means?
[English]
The Chair: We will invite, with respect to future reports, if it is your wish for you to have the opportunity to review fulsome reports. I’m going to suggest that there are times when we produce reports that are pretty basic and may not require that, but it is your committee’s report and I don’t think it’s appropriate for the chair or the steering committee to overreach, especially when some of the language is of some degree of sensitivity in reports like this.
Does that seem to be the will of the committee? Is it a fair way to proceed?
[Translation]
Senator Dupuis: If I understand correctly, reports will be submitted to members before being tabled in the Senate.
[English]
The Chair: I think that’s our intention, unless we are looking at pretty basic reports. For example, the discussions we might have in a report where we conducted a review of the non-substantive amendments. There seem, to me, to be circumstances where, if I were a member of the committee, I would have complete confidence that simple reports could be handled by steering and the chair. There may be circumstances where you say that this is a matter of some urgency and you delegate to steering the finalization of a report.
As we move to the conclusion of reports in the future, I, on behalf of steering, will take the temperature of the committee in terms of the degree of engagement you wish to have with respect to the final report. Does that seem to address this adequately?
Senator Patterson, you had another point?
Senator D. Patterson: No, I don’t. I just wanted to comment on Senator Batters’ interventions.
The report is in the Senate. There’s no easy of addressing the issues she has presented although, of course, she can speak to the report. I would encourage her to do so.
It has been the practice in some committees to have sent the final version of a report to members with a deadline to say, “If we don’t hear from you, please provide comments.” It’s hard for a committee to write a report. That’s where steering comes in.
Perhaps, in the future, we might consider that practice of circulating the report for comments before it’s finalized.
Thank you.
The Chair: Going forward, as we conclude deliberations on a particular topic or bill, I will invite your sense of whether you would wish such an approach to be taken or you’re comfortable with the matter just being signed off by steering.
That’s good advice, Senator Patterson. Thank you very much.
That concludes our deliberations for today. I want to thank all of you for your attendance and your engagement with the witnesses and the dialogue on this last topic, done in a kindly and respectful way, even though there are some modest criticisms embedded with respect to the performance of the chair.
(The committee adjourned.)