THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, November 1, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:15 p.m. [ET] to study Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts.
Senator Pierre-Hugues Boisvenu (Deputy Chair) in the chair.
[Translation]
The Deputy Chair: Welcome to the Standing Senate Committee on Legal and Constitutional Affairs.
My name is Pierre-Hugues Boisvenu. I am a senator from Quebec and the deputy chair of the committee. I’m filling in at the last minute for Senator Cotter, the chair.
I will now ask my fellow senators to introduce themselves.
Senator Dupuis: I am Senator Renée Dupuis, and I represent the senatorial division of The Laurentides, in Quebec.
[English]
Senator Pate: Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabe.
Senator Simons: Paula Simons, Alberta. I live in Treaty 6 Territory.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 Territory, Alberta.
Senator Klyne: Good afternoon and welcome, Mr. Goodon. Marty Klyne, a senator from Saskatchewan, Treaty 4 Territory.
[Translation]
Senator Dalphond: I am Pierre Dalphond, and I represent the senatorial division of De Lorimier, in Quebec. Welcome.
[English]
Senator D. Patterson: Welcome. Dennis Patterson. Senator for Nunavut, Inuit Nunangat.
[Translation]
The Deputy Chair: We are meeting to continue our study of Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts.
We are pleased to welcome Grand Chief Jackson Lafferty, Self-governing Indigenous Governments, who is joining us by video conference, and William Goodon, Minister of Housing and Property Management, Manitoba Métis Federation.
Welcome to both of you.
[English]
I give you the floor, Mr. Goodon. You have five minutes for your speech, and after that, each senator will have five minutes to ask questions.
William Goodon, Minister of Housing and Property Management, Manitoba Métis Federation: Thank you very much, Mr. Chair. I will try to get through as quickly as possible so I’ve got some time. I do have a tendency to fill in time like I’m doing right now, eating away my five minutes.
My name is William Goodon. I’m Minister of Housing and Property Management for the Manitoba Métis Federation or Métis government for the Red River Métis. I also get to do a lot of other fun things like this, so I appreciate everyone’s time here today.
I wanted to acknowledge Grand Chief Lafferty as well. We have some Laffertys in my family tree, so it’s possible we’re related.
I’m pleased to appear before this committee on behalf of the Manitoba Métis Federation, or MMF, the national government of the Red River Métis, as you continue to study this important bill.
The MMF has long supported the inclusion of a universal non-derogation clause in the federal Interpretation Act, and we unequivocally support the quick passage of Bill S-13. We commend the Government of Canada for finally proceeding with this long overdue and Indigenous-led initiative. The MMF is aware that this proposal has long been the subject of a multi-year effort, originally commenced by our friends with modern treaties, supported by others, and that this committee unanimously recommended such an amendment in 2007. We have been consulted and engaged with in respect to the current wording, and we advised the government of our agreement to the proposed wording and urged its quick passage.
The MMF’s approach has been consistent. However, the Manitoba Métis Self-Government Recognition and Implementation Agreement, which we signed with the federal Crown on July 6, 2021, contains almost identical wording to what is now proposed for the Interpretation Act, and our nearly completed treaty will have a provision to the same effect, upholding our section 35 rights and not abrogating or derogating from them. We anticipate that our treaty will be presented to Parliament in the upcoming months. In the meantime, we say that the same interpretive principle should apply to all federal enactments.
We agree with other Indigenous rights holders that we should not have to monitor every bill that comes before Parliament, to evaluate the risk of it advertently or inadvertently diminishing our rights, and then have to lobby for non-derogation provisions on an ad hoc basis. We also agree that the wording that currently exists in a number of statutes to the effect of not abrogating or derogating from the protection of our rights set out in the Constitution Act is pointless, ineffective and should be repealed.
It has come to our attention that certain organizations have suggested to this committee that the bill should be amended by adding wording referring to the United Nations Declaration on the Rights of Indigenous Peoples. Respectfully, this suggestion is of concern to us. While the idea of such a clause is certainly worthy of consideration, and there can be no question about MMF’s support of UNDRIP, we have not been presented with or consulted about any specific wording. There could well be complex issues of exactly how such a provision would work, and we understand that there has already been litigation as to the meaning of a similar section in the B.C. Interpretation Act. MMF continues to be involved in consultation and engagement around the ongoing development of the federal action plan and would be very open to discussions about such a clause, as already contemplated in section 2 of the 2023-2028 Action Plan. However, to date, there has been no consultation or cooperation with the MMF about the proposed clause. We strongly urge that Bill S-13 is not delayed while further consideration is given to an UNDRIP addition to the bill.
We have reviewed some of the proceedings of this committee from last week. We noted, in particular, the comments by Senator Patterson last Thursday at the end of the evidence given by representatives of the Nisga’a Nation and Nunavut Tunngavik Incorporated, to wit:
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.
MMF would like to add its voice to the Nisga’a Nation and Nunavut Inuit in agreeing with and supporting that view.
[Translation]
The Deputy Chair: Thank you, Mr. Goodon.
I just want to let everyone know that Senator Clement and Senator Prosper have just joined us.
I will now turn things over to Mr. Lafferty.
[English]
Jackson Lafferty, Grand Chief, Self-Governing Indigenous Governments: I want to thank you for this opportunity to speak this afternoon. I’m honoured to be able to provide comments on behalf of the Tlicho Nation, Northwest Territories, and on behalf of the Chief Executive Council of the Tlicho Government on Bill S-13.
Since 2007, the Tlicho Government, along with members of the Land Claims Agreements Coalition, have been advocating for a universal non-derogation clause. The amendments proposed in Bill S-13 are a direct response to this advocacy work. We support the passing of this bill without amendment.
Since the enactment of the Constitution Act, 1982, non-derogation clauses have been included in several federal statutes, with variations in the language used. At times this has led to confusing and detrimental results. For example, some clauses refer to non-derogation from the constitutional protection of Aboriginal and treaty rights rather than non-derogation from the rights themselves. This is too important not to get it right.
The non-derogation clause in the Mackenzie Valley Resource Management Act is a good example. I’d like to speak to the proposed amendment to the MVRMA, which mirrors the proposed non-derogation clause in the Interpretation Act.
As a modern treaty nation, it is important to us to improve, rather than repeal, the non-derogation clause in that law. As you know, we, the Tlicho, have exercised self-government for almost two decades. In addition to a modern treaty, the Tlicho Land Claims and Self-Government Agreement, the Mackenzie Valley Resource Management Act, is a key element of the framework that ensures that we have equal say and also co-management of the water and land we use in our territory called Môwhì.
Nothing could be more important to us than protection of our way of life and our lands as well. Making sure that MVRMA does not take away our constitutionally protected rights is the key. The MVRMA is a tool. The Tlicho Government is a treaty. The tool cannot change the treaty nor frustrates its provisions. That is why we have to get the non-derogation right. The distinct approach required for this act reflects the fact that modern treaties are distinct elements that cut across other existing distinction-based categories.
Some groups have called for inclusion of the UNDRIP clause in the bill. We respectfully disagree with that approach. We have been working on this for the past 20-plus years, and we are finally at the finish line. We are not opposed to new ideas but are wary of those that will delay this important step. We would like to emphasize that inclusion of a non-derogation clause in the Interpretation Act is a priority of this government’s UNDRIP action plan. The inclusion of the UNDRIP clause is not. The Tlicho Government has also not done its own analysis of the ramifications of including an UNDRIP clause. If Canada chooses to contemplate this new idea at a later date, we support that, but we do not see it as being part of the current conversation of the tabled bill.
Bill S-13 is finally striking federal law non-derogation clauses that potentially diminish section 35 Aboriginal treaty rights and will ensure that all federal statutes and regulations must be interpreted not merely to avoid impacting rights and also treaties but so as to uphold them. Treaties are at the heart of Canada’s constitutional fabric. They are fundamental bargains under which Canada was established. Non-derogation is a key element to respecting our fundamental agreements and making sure they live up to their promise.
I thank all those who played a part in getting us here. It has been a worthwhile journey. Mahsi’cho for this opportunity.
[Translation]
The Deputy Chair: Thank you, Mr. Lafferty.
Senator Batters has just joined us.
Starting off the question portion will be the bill’s sponsor, Senator LaBoucane-Benson.
[English]
Senator LaBoucane-Benson: I want to thank Grand Chief Lafferty for that speech. It’s the first time I’ve heard from you, Grand Chief. That was very interesting. Thank you so much.
I want to welcome Mr. Goodon back to a Senate committee. You seem to be hitting all the high points this week — APPA, here and House of Commons tomorrow. You are busy.
I know that MMF has a long-standing relationship with the federal government. You’ve been working closely with them on this, as well as many other projects. I had the chance to meet with your president the other day. You have a lot going on. Can you confirm, first of all, that MMF has been adequately consulted on Bill S-13?
Mr. Goodon: Thank you, senator.
My understanding is that the work has been done on Bill S-13, with the exception of the potential, proposed UNDRIP amendments, which we think are not pertinent at this time, and we need to make a move on this sooner rather than later, as actually now is later than sooner. Absolutely, yes.
Senator LaBoucane-Benson: My second supplemental question is this: A non-derogation clause, even in its name, sounds academic and legal. Can you help the committee understand what the passing of Bill S-13 would mean for MMF?
Mr. Goodon: I think that the fundamental point is to simplify things. As I said in my notes, we won’t need to have to look at every single act that’s coming through the Parliament of Canada. This simplification underscores the recognition of section 35 rights, the importance of that, and how it’s fundamental to everything that the Crown is doing, whether it’s federal or provincial Crown, although there may be barriers at other levels of government. Yes, the understanding that it’s there and must be looked at through that lens is absolutely vital for our continued work because we don’t want to go back and fight old battles over and over again. We want to move forward with the good work we’re all doing together.
Senator LaBoucane-Benson: Thank you.
[Translation]
Senator Dalphond: I’d like to start by thanking both of our witnesses today.
[English]
My first question is about the last part of both of your presentations. It’s about UNDRIP, as you may suspect. We don’t have any questions or issues with the first part of the bill, having the interpretation clause being part of the Interpretation Act instead of each being a separate act. You can forget one and have different wording from one to the other, which causes great confusion. We’re going to solve that problem.
The other issue is the UNDRIP bill. Grand Chief Lafferty, I understand you were elected at the Northwest Territories legislature for a long period of time. At one point, you were the Minister of Justice, if I’m not wrong, and Minister of Education and Speaker at one point. You have an understanding of the legal department and how the laws are done, and you are clearly of the view that we should not proceed and add to this bill provisions concerning UNDRIP?
Mr. Lafferty: Thank you for that question.
With my previous experience at the territorial legislature, as Minister of Justice, Minister of Education and Speaker, regarding the whole process itself of the Interpretation Act with the non-derogation area, we’ve been working on it for 20-plus years. With the reintroduction of UNDRIP, I think it’s going to take time to get there. It is a separate entity. When we started 20-plus years ago with the negotiation of the amendment to the Interpretation Act, UNDRIP wasn’t thought of at that time. There might have been some discussion, but it wasn’t in the picture at that time. This has been in the works for some time. If we were to add UNDRIP to the whole process of the bill we’re discussing here being tabled, it will delay the whole process. We respectfully would like to exclude that at this point in time. We will support it when it comes to a later time, as introduction, but at this point in time, without the UNDRIP, we need to speed up the process. As another speaker said, we’ve been at this for quite some time now. This will give us an opportunity to move forward.
Senator Dalphond: Grand Chief, your main concern seems to be about creating time or delaying the passage of the bill. Normally, a bill comes from the House of Commons and, if the Senate amends it, then it has to return to the House of Commons, which may result in delays. But here, the bill was introduced in the Senate. We’re the first to go to bat, if I can use that expression. If we’re going to amend it, that would not create delays. Will that address your concerns?
Mr. Lafferty: This is an area that we thought about when we first came in. The inclusion of the UNDRIP clause would make it a very different bill. We have not conducted an analysis of whether or not it would make it a better bill before us. There are many ways to make this a better bill, but this is an important bill and we do not want the inclusion of the UNDRIP clause to derail this important bill at this point in time. Those are some of the key concerns that we’ve had with the land claims coalition. There are 26 nations across Canada. The coalition membership includes modern treaty governments and organizations across Canada. The coalition members would like to see this bill passed without amendment. We’ve received correspondence at the federal level as well pertaining to this. Those are some of the key areas of concern that have been brought to our attention at discussion around the table with the land claims coalition.
Senator Simons: I’ll start with Mr. Goodon and maybe Grand Chief Lafferty as a follow-up.
We heard witnesses earlier in our process who spoke for Indigenous women and Indigenous women’s groups and argued with great passion that the exclusion of an UNDRIP clause would leave their rights vulnerable and that a non-derogation clause in and of itself pointing to the section in the Charter didn’t specifically speak to women’s rights in a way that the UNDRIP clause does. On the other hand, we heard from other witnesses that if we open this up and start sticking things in, it will change the intent of the bill, and it will be done by us without all of the collaborative consultation that was done on the non-derogation clause. What do you say to the Indigenous women who came before us and said they do not feel protected by the non-derogation clause alone?
Mr. Goodon: That’s a great question. I’ll try to get to the meat of this, but I have a couple of things to add to what the Grand Chief was saying.
We have supported the UNDRIP clause. I was in Geneva in 1999 helping with the drafting, so we’re long-time supporters of UNDRIP. One of the things we might want to consider is that UNDRIP isn’t necessarily the ceiling but is a floor. As we know, the Organization of American States is also working on the American declaration, which goes a couple of steps further. Will we be considering the ADRIP next year on an issue like this? It will make it a different bill.
One of the things you spoke of is the cause for concern, which is time, and the time needed to go back and do the consultations properly and to do the engagement. To consult effectively with Indigenous nations, governments and peoples across the country takes a fair amount of time, as our Métis governments are finding out with respect to our self-government and treaty negotiations right now.
What will we say to Indigenous women’s groups who have this feeling? One of the things we need to do is to consider the fact that we’re on a journey and we’re taking steps — one step and then the next step. I had the opportunity to walk up to Everest base camp. At one point, I was counting one step as an objective. Sometimes we need to do that as well here. Not everything will be perfectly aligned, but if we can take that step and hear the voices that have these concerns, then I believe there’s opportunity for discussion and work further down the road to be certain that those concerns are addressed.
Senator Simons: Grand Chief Lafferty, what are you doing to address the concerns raised by Indigenous women that they are not respected and protected by the non-derogation clause alone?
Mr. Lafferty: Mahsi for the question.
As elected officials, we represent various parties, individuals and community members when it comes to certain organizations that may have an interest — whether it be the UNDRIP or part of the whole discussion on the bill itself.
I want to reflect on the engagement. Regarding the introduction of UNDRIP through Bill S-13, it will take some time to engage people across Canada, and time is of the essence. Like I said earlier, if there are other opportunities that arise at a later time, we fully support them, whether it be UNDRIP introduction or others. At this point in time, time is of the essence to move this further along. It has been 20-plus years we’ve been negotiating this. The Land Claims Agreement Coalition, or LCAC, has been in discussion on this particular bill. There’s been correspondence with the federal government as well via letters going back and forth. I think it’s time that we proceed with this. My colleague has stated that we’re on a journey. I know this has been a long journey, 20-plus years, but we must embark on the journey to complete Bill S-13 to move forward with that.
There are organizations out there that obviously will be reaching out to us as well. I just want to say to organizations such as Native Women’s Association of Canada and other organizations that may have areas of concern or issues, obviously those will be brought to our attention as we move further along with this new bill.
Mahsi.
Senator Klyne: Mr. Goodon, what are your thoughts on the effect of Bill S-13, such as eliminating the need for Aboriginal peoples to request an NDC or non-derogation clause every time the government adopts a legislative measure that could have an impact their rights and could contribute to reconciliation? When I ask about your thoughts on the impact of Bill S-13, will it be a mere advantage or a significant and substantial advantage? On the other side of that, is there an act where an NDC shouldn’t be repealed and instead needs to be ever-present to ensure there’s no misinterpretation?
Mr. Goodon: Thank you, senator.
I think the changes proposed in Bill S-13 will make a clear difference. Many times, when we’re negotiating agreements, whether it’s on housing or self-government or, even broader, on land issues, rights issues, et cetera, there’s a certain tendency for us to have to use legal help. The less red tape the better when we have issues of great importance, like being able to care for our own kids or provide housing for our elders. Those are extremely important. It’s not something that our negotiating team needs to spend another 40 hours working on. It’s just an understanding that this is a part of everything that is being done moving forward.
On your second question, I don’t have the depth of knowledge to say whether there should be an act that should not be a part of this. I apologize for that. I may have to do some thinking, and next time we’re stuck in an airplane together, I’ll tell you.
Senator Klyne: Grand Chief Lafferty, is there any act for which you feel the NDC shouldn’t be repealed, that it needs to be upfront, clear, present, so nothing is misinterpreted?
Mr. Lafferty: The whole non-derogation clause is finally a response to the recommendation ensuring that every enactment would be interpreted as upholding Aboriginal treaty rights. This is according to our satisfaction as LCAC. You’ve heard from other jurisdictions as well, such as the Nisga’a government and Nunavut Tunngavik Inc., or NTI, that we should move forward on this as soon as possible. Not to elaborate further, but I echo the message on behalf of the Tlicho government that we support this bill going forward. Not only that, but at the same time, this bill obviously will ensure that federal laws and regulations would be interpreted to uphold Aboriginal treaty rights within Canada. Those are some of the areas of discussion that we’ve been having as LCAC, as land claims coalitions across Canada with 26 nations.
Senator Pate: Thank you to our witnesses for being here.
Sometimes the government consults with those who it already knows are in agreement and not with those who may have challenges. I have two related questions. Do either of you know of any Indigenous organization that would not support the UN Declaration on the Rights of Indigenous Peoples? Given that this is an opportunity, as has already been pointed out by colleagues, with the bill being at first instance here in the Senate, why would we not improve the bill at this stage rather than wait another number of years to include the UN declaration? It’s so clearly being called for by so many.
Mr. Goodon: Thank you, senator.
Consultation and the duty to consult are not my expertise, but I have been a part of our government’s response to it since I think the early 2000s. To us, consultation isn’t pro forma. It’s not just something on which you go through the motions, although there are some governments that have done that in the past. Not every government does it perfectly. Consultation has different meanings, depending on which side of the table you’re sitting on.
To my understanding, the duty to consult is owed to peoples and nations and not to organizations or non-profits. Although there are organizations that are able to advocate on the behalf of particular individuals, the idea of nationhood and nation-to-nation and government-to-government is something that needs to be considered with a little broader understanding than to organizations that advocate on behalf of particular groups.
With that being said, I don’t know of any organization or Indigenous government that would be opposed to the United Nations Declaration on the Rights of Indigenous Peoples.
I have heard this phrase before, and I apologize for pulling out my phone to look it up: Perfect is the enemy of the good. I’ve heard that said before. If we strive for perfection, if we strive to get this piece of legislation absolutely perfect, we probably will be waiting another 20 years. Hopefully, Grand Chief Lafferty is still around in those 20 years to push it forward. In order to get the “good” done, I respectfully believe that we need to move forward on this act and pass it and, at the same time, continue to work on all the other facets that will accompany it, including the United Nations declaration. I would urge our Government of Canada to take a look at the American declaration, which, as I said, goes even further with respect to the rights of Indigenous peoples in the Americas.
Thank you.
Senator Pate: I also would like to hear from Grand Chief Lafferty in a minute, but that saying is one of my least favourite sayings, in part because bad and the inadequate are also the enemy of good. In this case, as you acknowledge, virtually every Indigenous government and organization agrees that the UN declaration needs to be included. Why we would not include it, at this opportune time, in legislation, right now, still eludes me. Your answer has not convinced me otherwise, but I would be very interested in the Grand Chief’s —
Mr. Goodon: May I add to that? I appreciate that. I grew up with a father who — we lived on the land, lived on a farm. One of his pet peeves was when people said, “good enough.” He hated that because it is not good enough. If you can make it better, then make it better. At the same time, we could be spending an awful lot of time.
I do want to reflect back on the idea of time and consultation. If consultation is, again, to be done properly, then all the actors need to be consulted on the wording. Like I said in my statement earlier, it’s not that we’re against it; it’s just that this time we feel it is important to take the ball and put it over the goal line at this point. Thank you.
[Translation]
Senator Dupuis: Thank you both for being here.
I have a question for Grand Chief Lafferty.
When the minister was here, he explained that Bill S-13 would cover all the acts containing non-derogation clauses, except three, including the one that applies to the Mackenzie Valley.
I thought I heard you mention the Mackenzie Valley in your opening statement, Mr. Lafferty. Can you confirm whether I heard you correctly? Section 5 of the Mackenzie Valley Resource Management Act is basically a non-derogation clause, and the act isn’t listed in the schedule to Bill S-13. Is that the act you were talking about earlier?
The reason I ask is that the minister told us, when he was here, that Bill S-13 would not repeal the clause in the Mackenzie Valley act because the First Nations impacted by the bill had expressly requested that. Could you please confirm whether that’s what you were speaking of earlier?
To your knowledge, is it true that the affected First Nations expressly requested that Bill S-13 not cover the Mackenzie Valley Resource Management Act?
[English]
Mr. Lafferty: When I referred to the Mackenzie Valley Resource Management Act, I was using it as a prime example. Speaking to the proposed amendment to the overall Mackenzie Valley Resource Management Act, it also mirrors the proposed non-derogation clause in the Interpretation Act, so I just wanted to use that analysis towards the Interpretation Act that is before us. When it comes to speaking about the engagement, there have been several uses of the word “consultation.” I try to stay away from the word “consultation.” Engaging the people, engaging the communities, engaging Canada is more appropriate. It will take some time to engage people. But at the same time, when it comes to this whole land claims coalition, it has been in the works for 20-plus years as well. I was just using the MVRMA as an example tool when it comes to this whole non-derogation clause as part of the Interpretation Act.
[Translation]
Senator Dupuis: I have a follow-up question for Grand Chief Lafferty.
To your knowledge, have any First Nations who are self-governing Indigenous governments expressly asked not to be covered by Bill S-13?
[English]
Mr. Lafferty: In the discussions that we have had in the past with Land Claims Agreements Coalition, or LCAC, holders, 26 First Nations, when it comes to Bill S-13 and the non-derogation clause, there has been a lot of discussion that we must move this further along. We’ve been waiting for some time now. There hasn’t been any opposition or abstention on this matter. The LCAC, all the land claim groups and the monetary holders, are in full support of this bill going forward. Yes, they want to see the bill go forward. We are looking forward to positive change.
Mahsi.
Senator Clement: Welcome to both of you and thank you for being here. Thank you for your work as well — for the dedication you have to this work.
I want to speak about consultation again. I want to come back to the questions asked by Senators Simons and Pate. I want to speak about urgency. I heard you, Mr. Goodon, talk about how consultation is not just with organizations but with nations directly, so I’m listening to you.
I just want to quote Ms. Metallic, who provided testimony. She was here on behalf of the Indigenous Bar Association. She said:
By stating clearly in the Interpretation Act that federal laws and regulations must be interpreted in conformity with both section 35 and the UN declaration, Canada can truly achieve what it has already promised. Citing the need for more consultation to delay such a revision would be unfortunate, in our view.
Ms. Niman spoke with urgency about women and gender-diverse Indigenous people and spoke of the particular intersectionality of those people and spoke about the fact that the UNDRIP speaks much more directly to that intersectionality than section 35 can or has proven to do, or not do.
I guess I need to hear from both of you. Can you speak to the urgency that those women spoke of on behalf of intersectional people, and on this journey that we are all on, how that incrementalism can be problematic for people who speak with urgency?
Mr. Goodon: Why don’t you take a shot at this one first, Grand Chief?
Mr. Lafferty: Mahsi for that question.
There is urgency when it comes to engaging on this very important bill before us, Bill S-13, when it comes to adding other areas of interest, let’s say UNDRIP as a prime example. As the Tlicho government, even through the LCAC, the whole Land Claims Agreements Coalition, have not done much of our own analysis of the ramifications of including an UNDRIP clause into the bill. We need to do more work in this area. This was not thought of when the bill was first introduced 20-plus years ago. so we need discussion, engagement and negotiation. This is new to us. When I say “new,” the Northwest Territories government passed the UNDRIP law. We, as Indigenous governments across the Northwest Territories, fully supported it going forward, but that’s a separate bill that came and went. It is something that we’re working with and that we’ve introduced through LCAC and NWT, Northwest Territories. There is a new law in the works, so we have to work with that. With Bill S-13 that is before us, I believe there is an urgency to move this further along expeditiously. To make another amendment will obviously consider engaging Canadians across Canada. I’m not certain how long that will take, but it will delay the process. I’m not sure how long that delay will be. I can only speak for my Tlicho Government Chief Executive Council and LCAC — we were part of that process as well — that we want to move forward expeditiously with Bill S-13 as it stands.
Senator Clement: Thank you.
Mr. Goodon: I agree with my colleague, Grand Chief Lafferty. As Red River Métis, we also haven’t had the appropriate time to be able to dig into the potential ramifications of the wording around this. As we know, words are important, especially when it comes to issues like this, and this is a grand issue. UNDRIP is an umbrella document that can literally change lives. If it needs to be included, I think we would support that but, at this time, we don’t have the potential words nor the potential impacts — positive and potentially negative — in terms of what this would mean.
Senator D. Patterson: It’s great to see you, Grand Chief Lafferty.
Thanks to Mr. Goodon for paying such attention to our previous meetings. I am flattered that you noticed my modest comments.
I have two quick questions for each of you. You may have answered them.
Was your organization consulted on a proposed UNDRIP amendment? I could turn to Mr. Goodon and then to Grand Chief Lafferty.
Mr. Goodon: No.
Mr. Lafferty: No.
Senator D. Patterson: Recognizing that, to the Manitoba Métis Federation: You’ve advocated swift passage without amendment. My respected colleague Senator Dalphond has said that this bill is originating in the Senate, so if we approve this amendment, it will not create delays. However, I do know from my experience examining the UNDRIP bill, Bill C-15, that consultation was a huge issue, especially amongst treaty peoples, in the development of that act. If we added a new UNDRIP clause, putting aside the merits of such a clause, would you be concerned that, when the bill gets sent to the House of Commons and to a comparable committee like this one, there is every possibility that Indigenous witnesses could say, “We haven’t been consulted on the implications of this new clause, and this is a complication that we will need time to consider and review before opining on it”?
Mr. Goodon: Thank you, senator.
That sums up our position fairly well. As we know, the Supreme Court has said that if there is an effect on section 35 rights, the duty to consult is triggered. Something like this would trigger the duty to consult. Engagement and accommodation are also things that need to be considered when it comes to a time like this. As I said in my opening remarks, it’s not that we are against including it; it’s just that we don’t know what the words are that are going to be included. We have not been consulted on it. We have our own ways of doing things within our nation and within our government in terms of how we get direction from the people. If we have to go out to 20 different communities and ask them questions pertaining to something like this and how it would affect them in their homes, that will take some time. And that’s just us in the Manitoba Métis Federation. Other nations will have different ways of working with their people and hearing their voices. So, yes, it will take time.
Senator D. Patterson: Grand Chief Lafferty, I think the Lands Claims Coalition deserves great credit for persistently advocating for this change for decades. We heard one Inuit spokesman in our committee say that it had been discussed since 2002 and that Senator Charlie Watt was a champion of this amendment. You’ve worked for all these decades to get to where we are now and, with the best of intentions, folks have come in and said that while we are going to this long-awaited change, let’s add another — admittedly significant and, I would say, complex — amendment. Is your concern that this could well mess things up in the House of Commons, if not in the Senate, and delay this long-awaited, progressive change?
Mr. Lafferty: Mahsi, Senator Patterson. It is great to see you again.
As Mr. Goodon stated, it is going to be a complex addition to this very important bill that’s before us and the overall amendment will certainly delay the whole process. Obviously, LCAC and my government will be caught off-guard because we have not done much due diligence or analysis. We are of the view that when the bill was introduced to us by the Justice Minister, that it was going forward through the government and the Senate. Obviously, we supported it, rightfully, 100%. Coming back with an amendment of UNDRIP as another tool that’s being discussed here to be added will truly delay the whole process. Engaging people across Canada will take some time. As he stated, it is a very complex UNDRIP process. Even our own territorial law took a number of years to deal with this matter. To add that to Bill S-13 will obviously delay the process. We don’t want to see a delay. We want to see Bill S-13 expedited and become law so that we can start working together with the federal government and recognizing all the Aboriginal and treaty rights in all the bills that are coming forward. Those are some of the concerns that were brought to my attention by my leadership and by the LCAC.
Senator Pate: The question I was asking earlier, which Grand Chief Lafferty didn’t have a chance to answer, is the question I was hoping he could speak to. Does he know of any Indigenous governance groups or Indigenous groups that are against the UN declaration? I’m now adding, because of some of the ways the wording has been put, what are the complexities and the negative components that you are talking about if the UN declaration were included?
Mr. Lafferty: Mahsi.
I don’t see organizations or people going against or opposing the UNDRIP. As I stated, in our jurisdiction — and I can only speak to my jurisdiction — we passed the UNDRIP through the Northwest Territories legislature, and Indigenous governments across the Northwest Territories supported it and stood with the Government of the Northwest Territories.
When I speak to the complexity of the UNDRIP, it is a very complex file. We’ve been involved with the Government of the Northwest Territories, even though we’re a small jurisdiction. Just imagine the federal UNDRIP legislation.
When it comes to any amendments, it will take some time to engage the general public, meaning Canadians. It will take some time. That will delay the whole process.
As I stated — and I know I am reiterating — we have been at this for the past 20-plus years. At the same time, we are at the final stages. We want to see the end result. It has been introduced by the Justice Minister to the LCAC at the table. We haven’t been engaged with the new amendment. We just heard about it. This is a very complex area that we are foreseeing as a nation.
Mahsi.
Senator Dalphond: Grand Chief Lafferty, maybe you said it at the beginning of your presentation, but can you describe how many members of the Self-governing Indigenous Governments are part of your organization? In the views you are expressing, are you speaking on behalf of all the self-governing governments or just those of the Northwest Territories? I’m unclear about that. What level of consultation was done before the stated positions that you are taking today?
Mr. Lafferty: Mahsi for that question, senator.
We have 26 modern treaty holders in the Land Claims Agreement Coalition. When I speak here today, I’m speaking on behalf of my Tlicho government in the Northwest Territories, but at the same time, we’re part of the Land Claims Agreement Coalition. This discussion of the whole Interpretation Act has been before us. We discussed it, and we supported Minister Lametti introducing the new Bill S-13 before us. I can safely say on behalf of the LCAC that we’re supporting this bill moving forward as is. But, at the same time, I’m just part of the whole Land Claims Agreement Coalition as a member.
Mahsi.
The Deputy Chair: Thank you very much.
[Translation]
Honourable senators, no doubt, I speak for all of you when I say how grateful the committee is to both witnesses for their time this evening and contribution to our study of Bill S-13. Thank you to the witnesses.
That brings us to the end of today’s meeting, honourable senators. Does anyone have any concerns to raise before our next meeting? Seeing none, I wish you all a good rest of the evening. See you tomorrow.
(The committee adjourned.)