Thursday, June 6, 2019

The Standing Senate Committee on Aboriginal Peoples has the honour to table its

NINETEENTH REPORT

Your committee, which was authorized to examine the subject matter of those elements contained in Division 25 of Part 4 of Bill C-97, An Act to implement certain provisions of the budget tabled in Parliament on March 19, 2019 and other measures, has, in obedience to the order of reference of Thursday, May 2, 2019, examined the said subject-matter and now reports as follows:

On August 28, 2017, the Prime Minister announced the dissolution of Indigenous and Northern Affairs Canada and the creation of two departments, known as Indigenous Services Canada and Crown Indigenous Relations and Northern Affairs. While the process to establish the two departments has been ongoing, if passed, Bill C-97 would formalize their creation.

The federal government has indicated that this change to the machinery of government was recommended in the final report of the Royal Commission on Aboriginal Peoples (RCAP) released in 1996. However, some witnesses pointed out that dissolving the department was only a small component of RCAP’s proposed plan to restructure the relationship between Indigenous peoples and Canada.^[1] Further, the Committee believes that although RCAP worked with Indigenous peoples to develop its recommendations, the Commission’s final report should not be a substitute for consultation on the dissolution of Indigenous and Northern Affairs Canada.

A letter from the Ministers of Indigenous Services and Crown-Indigenous Relations  indicates that the federal government held over 100 engagement sessions on the creation of the two new departments since February 2018.^[2] Some of these engagement sessions may have been part of the national engagement to develop a proposed Recognition and Implementation of Rights Framework.^[3] The letter specifies that the departments have been working with organizations such as the Assembly of First Nations on the legislative amendments in Division 25 of Part 4 of Bill C-97.^[4] The Committee was only made aware of potential amendments to Bill C-97 in regards to Division 25 through the Minister’s letter received on the evening of May 28, 2019. These potential amendments came too late in this Committee’s consideration of its pre-study of C-97.^[5]

However, the Assembly of First Nations informed the Committee that there was a lack of meaningful consultation on the creation of the two departments and a potential third ministry. Other witnesses who appeared before the Committee, including the Assembly of Manitoba Chiefs and the Onion Lake Cree Nation, echoed these concerns. Further, the Assembly of First Nations felt that “there has been insufficient time for First Nations governments and representative organizations to thoroughly review and analyze the Bill, obtain legal opinions on the matters raised, and prepare submissions.”^[6] The lack of consultation led some witnesses to state that their treaty rights were violated^[7] and some recommended that Division 25 of Part 4 be deleted from Bill C-97.^[8] The Committee is aware, of course of the Supreme Court of Canada decision in Mikisew Cree First Nation v. Canada (Governor General in Council), which specifically  addressed the question of pre-legislative consultation and that the federal government does not have a legal obligation to consult in the development of legislation.  However, the Committee is also aware of the federal government’s commitment to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) which specifically calls for government to develop legislation affecting the rights of Indigenous people in full consultation and with their approval.

The Committee is disappointed that once again we are hearing about a lack of meaningful consultation on legislation that has a significant impact on Indigenous peoples. This is particularly concerning given the federal government’s support for implementing UNDRIP. UNDRIP includes the right of Indigenous peoples to participate in decision-making processes, for example in article 18, a right which was not respected in the development of Bill C-97. The Committee recognizes the limited time remaining in the parliamentary session. However, to ensure that meaningful consultation takes place with Indigenous peoples, communities and organizations, the Committee recommends:

Recommendation 1

That the Standing Senate Committee on National Finance amend Bill C-97 by deleting Division 25 of Part 4 and reintroducing it in the Senate as a stand-alone bill to allow better participation of Indigenous rights holders in the legislative process.

Recommendation 2

That Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs Canada:

·undertake additional consultations with Indigenous peoples, communities, and organizations on the replacement of the Department of Indian Affairs and Northern Development with two new departments and potentially a third Ministry of Northern Affairs;

·report back to the Committee within one year on the consultation process and progress made to address issues raised, such as the concerns of First Nations with pre-1975 treaties and whether the Minister of Northern Affairs should be a discretionary or mandatory appointment.

[1] Senate, Standing Committee on Aboriginal Peoples [APPA], Evidence, 1st Session, 42nd Parliament, 16 May 2019 (Veldon Coburn, Faculty member, School of Indigenous and Canadian Studies, Carleton University, as an Individual; Scott Serson, former Deputy Minister, Aboriginal Affairs and Northern Development Canada, as an Individual).

[2] Government of Canada, Letter from the Honourable Carolyn Bennett, Minister of Crown-Indigenous Relations and The Honourable Seamus O’Regan, Minister of Indigenous Services to Senator Dyck, May 28, 2019.

[3] Crown-Indigenous Relations and Northern Affairs Canada, National engagement on the recognition of Indigenous rights.

[4] Government of Canada, Letter from the Honourable Carolyn Bennett, Minister of Crown-Indigenous Relations and The Honourable Seamus O’Regan, Minister of Indigenous Services to Senator Dyck, May 28, 2019.

[5] Government of Canada, Letter from the Honourable Carolyn Bennett, Minister of Crown-Indigenous Relations and The Honourable Seamus O’Regan, Minister of Indigenous Services to Senator Dyck, May 28, 2019.

[6] Assembly of First Nations, Brief to the Committee on Bill C-97, May 21, 2019.

[7] Assembly of First Nations, Brief to the Committee on Bill C-97, May 21, 2019; APPA, Evidence, 1st Session, 42nd Parliament, May 16, 2019 (Craig Makinaw, Chief, Ermineskin Cree Nation). 

[8] Assembly of First Nations, Brief to the Committee on Bill C-97; APPA, Evidence, 1st Session, 42nd Parliament, May 14, 2019 (Marcel Balfour, Senior Policy Analyst, Assembly of Manitoba Chiefs); APPA, Evidence, 1st Session, 42nd Parliament, May 16, 2019 (Craig Makinaw, Chief, Ermineskin Cree Nation; Okimaw Henry Lewis, Chief, Onion Lake Cree Nation).    

Respectfully submitted,