THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
OTTAWA, Wednesday, May 29, 2019
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, met this day at 6:45 p.m. to give consideration to the bill; and, in camera, to study 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 (consideration of a draft report).
Senator Lillian Eva Dyck (Chair) in the chair.
The Chair: Good evening. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room, on television, or listening via the Web.
I would like to acknowledge for the sake of reconciliation that we are meeting on the traditional unceded lands of the Algonquin peoples.
My name is Lillian Dyck, from Saskatchewan, from the Gordon First Nation, and I have the privilege and honour of being the chair — [Indigenous language spoken] — of the Standing Senate Committee on Aboriginal Peoples.
Today, we continue our examination of Bill C-262, an Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.
Before we start, I would invite my fellow senators to introduce themselves.
Senator Doyle: Norman Doyle from Newfoundland and Labrador.
Senator Patterson: Dennis Patterson from Nunavut — [Indigenous language spoken] — Madam Chair.
Senator Tannas: Scott Tannas from Alberta.
Senator McCallum: Mary Jane McCallum, Treaty 10, Manitoba Region.
Senator McPhedran: Marilou McPhedran, Manitoba.
Senator Francis: Brian Francis, Prince Edward Island.
Senator Coyle: Mary Coyle, Nova Scotia.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Lovelace Nicholas: Sandra Lovelace, New Brunswick.
Senator Christmas: Daniel Christmas from Membertou, Nova Scotia.
The Chair: I would like to welcome to the committee this evening Professor John Borrows, Canadian Research Chair in Indigenous Law, University of Victoria; and Professor Joshua Nichols, Assistant Professor, Faculty of Law, University of Alberta, and both gentlemen will be by video conference.
Thank you for taking the time to meet with us this evening. We will begin opening remarks with Professor Borrows, followed by Professor Nichols.
John Borrows, Canada Research Chair in Indigenous Law, University of Victoria, as an individual:
[Editor’s Note: Mr. Burrows spoke in his Indigenous language.]
I’m introducing myself in an Algonquin language in respect of the territory on which you’re gathered there and also to recognize the Songhees and Esquimalt territories here of the Algonquin-speaking peoples.
I appreciate the opportunity I have to be able to speak about Bill C-262. The point that I wanted to make this evening is that, among other things, the United Nations Declaration on the Rights of Indigenous Peoples is an economic development instrument. It is also about good governance, and it’s also consistent with our highest aspirations for the country in both trade and human rights terms. The point I want to make is that when we read Bill C-262 and UNDRIP, as I’ll refer to the declaration from this point onward, we need to read it contextually and we need to read it as a whole. Because ideas of governance and economics are prominent in the agreement, I believe that a coupling of self-determination with economic justice is an act of reconciliation, and that can change the very way we practice investment and trade in the country itself.
I understand that the concern around the document, Bill C-262 and UNDRIP, is whether or not this declaration and legislation would give First Nations, Metis and Inuit peoples a veto on development as a result of this action that you’re considering.
I want to note that the word “veto” does not appear in UNDRIP. In fact, the words are “free, prior and informed consent.” This cannot necessarily be construed as a veto. The words FPIC, or “free, prior and informed consent,” will develop a distinctive meaning that will have procedural and substantive aspects as a part of them. That, I think, is the way to look at the document.
Where veto has come up is actually under Canadian law in relationship to section 35(1) of the Constitution. There’s a case out of British Columbia called Tsilhqot’in, which recognized Aboriginal title. The court said that once Aboriginal title rights are recognized, a veto would be available for that group on those lands, but that’s, again, after the rights have been recognized, and even with that veto power being present, section 35(1) still gives the government the opportunity to justifiably infringe the Aboriginal title rights if they can do so in a manner that preserves the honour of the Crown and has a valid legislative objective.
I’m making the point here that veto is not a part of UNDRIP, nor is it a part of Bill C-262. It is a part of Canadian law, but the wording in the document itself, in UNDRIP, is “free, prior and informed consent.” That’s where we should be focusing our attention for those who might be concerned about those elements.
In fact, if you read article 46 of UNDRIP, it’s quite clear that the document has to be read contextually. Article 46(1) says that the document can’t be construed in a way that would undermine the territorial integrity of the nation, and (2), that there are limitations on the UNDRIP rights, and those limitations can be exercised as long as there are compelling requirements in a democratic society for the state to take action in a way that might be contrary to some of those rights in the document.
Then article 46(3) says:
The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.
In my last two or three minutes, I want to emphasize the economic dimensions of UNDRIP. It is talked about explicitly 16 times in the document by name in terms of economics, and there are many other provisions in the document that don’t use the word “economic” but advance that point. I want to put this act and UNDRIP into conversation with larger investment and trade decisions that are being made in the country.
As you know, the United States-Mexico-Canada agreement dealing with free trade, which has yet to come into effect — the NAFTA replacement — has removed the investor-state dispute resolution provisions as between Canada and the United States, which means that if there are foreign investors who have concerns about the way Canada deals with Indigenous peoples, the governments cannot be taken to the investment dispute resolution body to be held accountable for any actions that they might be taking to implement Indigenous or Aboriginal and treaty rights.
Likewise, the agreement, in its article 32.5, says there’s a broad exception that clarifies that states are able to take measures to protect the rights of Indigenous peoples as long as those measures are not arbitrarily or unjustifiably discriminatory.
Annex IV of this free trade agreement enhances Indigenous economic development opportunities for Indigenous businesses by allowing for preferential treatment in procuring government contracts for state-owned enterprises. There are also provisions that allow Indigenous peoples to participate in the small and medium-sized enterprise development aspects of the agreement.
Furthermore, there are intertribal investment and trade opportunities where Indigenous peoples can trade handicrafts, textiles and other apparel goods back and forth across the border.
There are also articles that talk about trade and the environment, which state that parties recognize that the environment plays an important role in the economic, social and cultural well-being of Indigenous peoples and local communities and acknowledges the importance of engaging with such groups in the long-term conservation of our environment.
I’m citing some of the provisions of this free trade agreement, the USMCA, to give a sense of how investment and trade would be dealt with and is being dealt with in section 35 through referencing the Tsilhqot’in decision in a fashion that is one that strives for harmonization. It’s about balancing, yes, Indigenous self-determination. Indigenous rights are going to be recognized and affirmed in new ways by this document. If it’s implemented through Bill C-262, I expect that free, prior and informed consent will receive judicial treatment, but it is important to note that veto will just be one of the many things that will be talked about by the judiciary and others in implementing this document. I hope that the document is read as a whole.
These are my opening words.
Joshua Nichols, Assistant Professor, Faculty of Law, University of Alberta, as an individual: I’d liked to acknowledge that I’m speaking to you today from Treaty 6 Territory, and I’ll be focusing my remarks on the framework that is currently used to interpret and apply section 35(1) of the Constitution Act, 1982.
Our Supreme Court has referred to this as the framework of reconciliation. While there has undoubtedly been some positive development stemming from this framework since it was first developed in Sparrow in 1990, it has also proven to have distinct limitations. These limitations were in many ways anticipated by the Penner report in 1983, which warned that the meaning of section 35 should not be left to the courts because such an approach would be, in their words, “. . . difficult to execute and uncertain in its outcome.” If we consider how long it takes for litigation via section 35 to actually arrive at resolutions through our courts, we can get a sense of just how prescient the Penner report was.
The case law regarding the duty to consult and accommodate is a good example of this. While the process that the duty to consult case law has generated has doubtlessly had some positive effects, it has been developed on the basis of the assumption that the Crown has sovereignty, legislative power and underlying title. The courts’ unquestioning acceptance of this constitutional claim has led to the creation of a process where the court is able to unilaterally determine the weight of Indigenous claims, situate them on a spectrum, determine the consultation required and ultimately justify unilateral infringement.
In other words, the duty to consult and accommodate has been constructed on the assumption that the relationship between the Crown and Indigenous peoples is that of a sovereign to subjects. This presumption, however, lacks both a factual and principled legal basis. Indigenous peoples have consistently maintained that they are not subjects of the Crown; rather, they have a nation-to-nation relationship with the Crown and constitute a third order of government.
By reflexively accepting one vision of a contested constitutional relationship, the court has generated a series of complicated legal processes and tests that are weighted towards fitting Indigenous peoples into a relationship that they have consistently rejected over the last 150 years. In designing processes of adjudication that presume that the constitutional problem is already settled, the court has generated a process that is ill-suited to facilitate negotiations and sustainably resolve disputes.
The implications of this constitutional presupposition are clearly exemplified in cases such as Ktunaxa Nation, as the Indigenous claimants attempted to articulate jurisdictional claims over territory that they hold to be sacred within a procedural framework that requires them to adapt their claim — rights.
It is also clear in Clyde River and Chippewas of the Thames that the Indigenous claimants object to the notion that the duties arising from their relationship with the Crown can be carried out by arm’s length regulatory boards. In effect, the distance between the parties in these cases is not one of degree but one of kind, and so it cannot be expressed on the spectrum arising from Haida.
Indigenous peoples articulate their claims in the language of inherent jurisdiction within a nation-to-nation relationship, whereas the court speaks the language of contingent rights within a sovereign-to-subject relationship. This places the courts in a position where the common law offers two very different paths. If the appropriate framework is contingent rights, the correct approach is to retain the status quo of relying on Charter analogous rights. One challenge of the court’s current approach is that simply assuming that one party’s view of the conflict is correct and designing the process for remediating disputes accordingly will not result in acceptance and so cannot provide any legal certainty. If one party feels their claims are not being heard, they will not feel the outcome is legitimate. The party whose views are not reflected in the process will more likely opt to use litigation strategically, as merely one instrument in a larger project of resistance aimed at resolving the underlying constitutional problem. This is not a recipe for negotiated settlement; it is one who’s more likely products are continued conflict, faction and escalation.
There is another possible approach. If the courts move away from the Charter-like approach of Sparrow and shift towards the legal framework of jurisdiction, then the applicable areas of law are the division of powers, conflicts of law and comity. The most appropriate case to model the procedure on is the Secession reference. This is the path that UNDRIP and Bill C-262 open to the courts. It offers to them, and indeed all parties, a legal toolbox to move past the current problems in our jurisprudence. It has the benefit of doing so by being persuasive legislation and not a binding constitutional amendment. This means that it can offer the law time to adapt and change. Seen in this light, Bill C-262 is not a sudden and abrupt shift, but one further step on the road to real nation-to-nation reconciliation.
The Chair: Thank you very much. The floor is now open to questions from senators.
Senator Tannas: Gentlemen, thank you for being here.
I wonder if you could provide your thoughts on the bill and what it does to the legal status of UNDRIP compared to just where we are right now, which is that Canada has agreed to sign on to UNDRIP. We’ve already done that. That’s been done. We’re finished. We now stand with 100 and some odd countries at a place. But we are now proposing to do something that, in my understanding, no other country has done, and that is to pass a law about UNDRIP. From your point of view, what does this law provide that isn’t already provided by Canada agreeing to associate itself with the United Nations Declaration on the Rights of Indigenous Peoples, like other countries have done?
Mr. Borrows: There are three points I would like to make in that regard.
The first one is that it’s as if each and every piece of legislation that already exists in Parliament has Bill C-262 appended to it, meaning that you would look at each and every other piece of legislation and ask the question whether or not it is consistent with the United Nations Declaration on the Rights of Indigenous Peoples. It’s like making an amendment to each and every bill that already has flown through Parliament.
Second, it compels the Government of Canada to come up with a national action plan that must be done in consultation and cooperation with Indigenous peoples. That legislative direction creates a higher standard of accountability for the government act. They’re not just going this route through executive action.
Finally, the annual report to Parliament will give us a snapshot as to how we’re doing year to year to year in meeting the objectives of the legislation.
Those three things are quite distinct and different from what we already have.
Senator Tannas: Just on the first point, because I really do want to be clear, we append UNDRIP to every law that’s ever been passed, and we have a plan, as you said, to do that review. What if I’m in a rush and I don’t want to wait for the review of whatever law it is that I’d like UNDRIP to apply to tomorrow? Do I go to court, and do I have a case?
Mr. Borrows: It’s always possible, because when you’ve got something legislatively in place, the question is whether or not the government is acting consistently with its legislative objectives. So yes, there could be a case.
The challenge in that regard is that litigation is quite expensive, and many of the Aboriginal groups are not going to be able to afford that kind of action. Then you have the 10 principles from the federal government, as well as the direction to the Department of Justice to take litigation positions that are in tune with reconciliation. It is possible that you could go to court, but there are many things that are in place to try to get the parties to deal with this in other ways.
If I could use an analogy, it’s as if this Bill C-262 is a pair of glasses. When you put these glasses on and look out through those lenses, you’re seeing each and every piece of legislation that’s coloured by and sharpened by and given greater definition by the lenses that are part of what’s here. In some ways, that’s going to take us away from litigation because it’s going to give parties more tools to work with that come from UNDRIP, that come from the national action plan and that will then be reviewed by Parliament. So yes, it’s possible to have more litigation, but it’s also possible that we have more offramps from litigation and more potential to be able to get into the problem solving modes that are found in this declaration itself.
Senator Tannas: So you would disagree with the position that we heard from the Justice lawyers that advised the government on this, who basically said that it conferred no additional and did not frame the power of the first, clause 3 and clause 4, in anywhere near the fashion you have just done?
Mr. Borrows: I would just reiterate what I said, which is that if you were making a legislative commitment to have your legislation be consistent with UNDRIP, then that requires a level of accountability that’s not currently present in our legislation. There is room for some judicial review on that front, but that is subject to the other points I’m making that have to do with the offramps from litigation to more creative problem solving.
Senator Tannas: Thank you.
Senator Coyle: Thank you both for your very helpful presentations. You’re helping us round out our understanding this evening.
I’d like to pick up on this last point that you said, Dr. Borrows, and perhaps Dr. Nichols could also speak to it. I’d like to understand how both of you see these offramps that you’re describing — the tools that UNDRIP now adds to Canada’s and Indigenous peoples’ tool kits that could potentially help avoid litigation. Could you speak specifically to that just so that we understand it in more detail?
Mr. Borrows: Sure. We could pick a particular article of the declaration. Let’s look at article 34.
Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, judicial systems or customs, in accordance with international human rights standards.
For instance, if there’s a case of consultation and accommodation that comes before the court, and Indigenous peoples are using environmental assessments to be able to review the action that’s taking place on their territory and they’re talking to scientists and they’re talking to their elders and they’re talking to their members, this particular provision would allow us to be able to say, “Well, these are structures and institutions of Indigenous peoples that are there to promote the human rights standards in the community.”
What that does is it gives better information to proponents about what the development might do in terms of its impact because there’s a hearing on that front. It also gives a sense of whether or not this development will be acceptable or not from the Indigenous nation’s perspective. So that certainty that flows through this institutional mechanism would enable a proponent to say that when they’re going forward with whatever it is that’s being proposed, that they have the input and agreement and they can take account of what’s there.
We have examples of that in British Columbia. The Nisga’a have agreed to allow an LNG plant to come into their territory as a result of their environmental review. The Squamish have done the same with the Woodfibre LNG plant. On the other hand, the Tsleil-Waututh have said the current proposal of the TransCanada is not acceptable to them.
In any event, it gives us more information because there’s an organized structure that we can now recognize through Bill C-262 that says, “Here is a group exercising their self-determination, and here’s the decision they’ve taken.” Now there’s an opportunity to relate to that decision as opposed to having 50 different groups speak from different house groups or families or whatever. It can be organized in greater effect.
Mr. Nichols: I’d like to echo that. I have two points.
One, the duty to consult and accommodate that has been developed out of section 35 is also supposed to provide third party proponents with models on how to engage with Indigenous peoples to arrive at agreements in order to allow projects to go through. The problem has been that the instructions that the court has developed tend to change on a case-by-case basis, so proponents are given uncertain instructions to go and engage in consultation. What this bill promises to do is to add a persuasive but not constitutionally binding type of legislation that provides a roadmap for proponents that want a greater degree of legal certainty on how to achieve agreement before a project goes forward, to avoid what will end up being in the courts, under section 35, for up to 10 years of litigation or more.
I would also like to say that it provides the courts a clear signal that is different from the current arrangement where we’ve signed on to UNDRIP because it brings it directly into the domestic legal framework. That doesn’t bind them to suddenly change their interpretations of section 35. Rather, it provides them a set of resources and tools to augment and get out of some of the doctrinal knots that have been tied over the last 30 years in that case law.
Senator Lovelace Nicholas: Welcome here tonight.
You mentioned veto. In case there’s an amendment to this bill, would you suggest us putting in a veto?
Mr. Borrows: I would not suggest putting in a veto. The idea of balancing is the point that is consistently here through the document. It’s also present in the wording of Bill C-262 itself, the notion of consultation and cooperation. Then, of course, as section 35 has proceeded, it’s also about attempting to balance. I would not recommend veto in the legislation.
Mr. Nichols: I would echo exactly what Professor Borrows says. I would avoid the term veto. I think it’s misleading in how consent operates.
In fact, in the duty to consult as it currently exists, the court has repeatedly emphasized that First Nations do not have a veto, but that is also a bit of a misnomer in the case law because what they mean is Indigenous parties lack the capacity to say no because, ultimately, unilateral infringement is on the table. That has led to a problem in the case law because if a party can’t say no to a negotiation, that’s not a negotiation. The courts have repeatedly emphasized they want to provide a framework for negotiation, but what they have provided is something that allows the Crown to continually roll the dice in litigation to achieve a unilateral outcome. That’s not negotiation.
So saying yes or no to an agreement is not a veto. That’s just simply how contracts work.
Senator Lovelace Nicholas: Thanks for your answer.
We used to have free trade across the borders, such as Indigenous trading their wares to the United States. Canada took that away from us. In case this bill passes, I know it won’t automatically give us free trade back, but what could we do to get our free trade in the bill?
Mr. Borrows: Thank you for that question.
There is a provision in the United Nations Declaration on the Rights of Indigenous Peoples that talks about respecting the international nature of Indigenous connections. I’m a Nishnawbe or Ojibwe or Chippewa, and we continue to go back and forth across the border in many provinces, including into Minnesota, Wisconsin and Michigan. I’ll read to you the provision that I referred to earlier from the free trade agreement, article 6(2):
1. An importing Party and an exporting Party may identify particular textile or apparel goods that they mutually agree are . . . indigenous handicraft goods.
2. The goods . . . shall be eligible for duty-free treatment by the importing Party provided that any requirements agreed by the importing and exporting Parties are met.
So the point I’m making by reading Bill C-262 with that provision of UNDRIP that recognizes our cross-border nature and then the new free trade agreement is that this is getting more explicit about enabling us to have those historic relationships be revitalized and go through a resurgence, all under law in a way that is orderly and patterned without creating arbitrary chaos for the Canadian government. It allows us to reinvigorate those relationships that we’ve long held.
Senator Lovelace Nicholas: In other words, that would have to go to court?
Mr. Borrows: Not necessarily. It is the case that you pass legislation and legislation often goes by without challenge. If someone decides to prosecute an Indigenous person bringing something across the border, it could go to court at that point, but we would then have greater protection as Indigenous peoples if it went to court because we could cite the provision in UNDRIP and then we could look to associated actions, like in the free trade agreement and the Jay Treaty and other things, to show that we continue to have this ability to add to not only our own economies as Indigenous peoples but add to the nation state as well.
I want to make this point. First Nations economies are bungee economies, like bungee jumping. What happens is a dollar will come into the community, it will hang there for a second, and then it will come out and it will go into the surrounding communities. So any dollar that goes into a First Nations community ends up benefiting surrounding communities.
The beauty of creating economic development within Indigenous communities is if that dollar can hang there for five seconds and pass through two or three hands, that dollar will grow from $1 to $5 to $10, so that when it comes out, it’s not just $1 going in and $1 coming back out. It’s $1 going in and $10 dollars coming back out. I think that’s what needs to be contemplated. As I say, this is an economic development instrument. It allows us to find ways to grow our economies in a harmonized way with those communities that surround us. That also reaches across the border in a way that shouldn’t be threatening and, just like a free trade agreement, should actually be enhancing our welfare as Indigenous peoples and as all our citizens of this country.
Mr. Nichols: A recent case in the B.C. Supreme Court has recognized, through section 35, hunting rights from an Indigenous person in Washington State, so we’re already moving this way within our own constitutional law. What Bill C-262 offers is more tools for the judiciary who are trying to think out very complicated problems with very limited means. Bill C-262 allows them access to a set of principles that are drafted by Indigenous peoples and open up the possibility of Indigenous peoples’ laws entering into and harmonizing with the Canadian legal system.
Senator Lovelace Nicholas: Thank you.
Senator Patterson: I’d like to address my question to Professor Borrows, but, of course, Professor Nichols could weigh in. I would say we’re privileged to have you both before this committee.
Professor Borrows, as I understand your presentation, and there was a lot in there in a short time, you’ve said that the UN declaration is a legal toolbox to move past our current persuasive legislation gradually, and you talked about it moving us from a sovereign-to-subject relationship of the Crown to a nation-to-nation relationship. You got my attention when you talked about its economic significance. You condemned, I think, 150 years of process in the courts that basically is in conflict with the nation-to-nation approach, and you talked about the doctrinal knots over 30 years.
I know that developers need certainty, but you’ve said that the critical issue of free, prior and informed consent will develop a distinctive meaning as a procedure. What I want to ask you — and I’m getting to my question — is if we are starting with the adoption of the UN declaration in Bill C-262, a gradual process of changing all of the jurisprudence on consult and accommodate from the sovereign-to-subject to nation-to-nation, isn’t that going to create a new level of uncertainty for developers? I think they have studied carefully all the rulings that you’ve referred to and are doing their best to accommodate, but you’re saying we’re starting a new journey that will gradually move us away from our present jurisprudence of over 150 years to something new. Isn’t that uncertainty that will inhibit investment in development?
Mr. Borrows: I think the contextualization of the bill is important because we are currently in a state of great uncertainty. As Professor Nichols talked about in his presentation, the way section 35(1) has been interpreted doesn’t give proponents clear direction as to who they should talk to, what the timelines are for discussion and what the agreement would be that would be acceptable to the proponent for development to go forward. If you cut out the Crown from always being interposed between Indigenous peoples and the proponent and allow Indigenous peoples to directly have those conversations about what is the timeline, who are the proper decision-makers, what are the milestones along the way to be able to do or do not engage in an activity, then I think that lends greater certainty because you’re no longer filtering it through a more distant party, be it Victoria or Ottawa or Queen’s Park. You’re actually going to the source, and by talking to the source about what’s required here, you’re likely to get greater certainty.
Now, it is the case that Indigenous peoples will have differences of opinions about whether or not they do something or in which ways they do something, and part of what I think Bill C-262 encourages is Indigenous peoples themselves to implement UNDRIP so that they will organize in such a fashion that gives rise to a recognizable set of principles and processes for the stuff of law. So you’ll see First Nations being much clearer and saying, “Here’s our standard, our principle, our criteria, our measure, our guidepost, our touchstone, our rule, our regulation for how this should occur.” Right now, the current mechanisms are thrown into this really vague and ambiguous section 35(1) jurisprudence, which doesn’t do that same kind of work.
Senator Patterson: Now, you used the term “cut out the Crown,” but you also cited 46(1) of the declaration which says that nothing in the declaration can be construed to undermine the sovereignty of the state. How does 46(1) jibe with your suggestion that the Crown is cut out and Crown regulatory bodies are discredited as agents of the Crown? Isn’t that a conflict that would create confusion?
Mr. Borrows: No, I don’t think so. Again, reading this document with nuance, and being aware of the danger of a single story, would have us see that there are all these provisions that allow for Indigenous peoples to express their points of view, which would then attenuate the role of the Crown and not have them interpose themselves all the time when they’re trying to express what their interests are.
But once they’ve done that, if there’s something that’s pressing in the country that needs to be taken account of under article 46, which, again, is an article that says limitations can be there if there’s compelling requirements in the democratic society, that introduces the Crown back in at that stage. But rather than the Crown being there in each and every instance, kind of getting in the way of liberty and the freedom of contract, you would have the Crown stepping in later in the process if something has gone wrong that’s not consistent with human rights, equality, non-discrimination, good governance or good faith. So that’s the balance or the nuance that’s present in this legislation and UNDRIP.
Senator Patterson: You talked about free, prior and informed consent at the opening of your remarks, and you said it’s not a veto, but then you said, “it will develop a distinctive meaning as a procedure,” if I quoted you right. I think I did. To me, if that’s what you said, you were saying that we really don’t yet know what free, prior and informed consent means, as it’s obviously highlighted in the declaration. The meaning will develop as a procedure, I guess, over time or through the application of the bill. Doesn’t it also suggest that we’re entering into an area of uncertainty and lack of clarity if the meaning is going to only be developed? I think you used the term “gradually” as well. Won’t that create uncertainty?
Mr. Borrows: I guess the question is what we are focusing on when we’re looking at this issue of certainty versus uncertainty. I think what I was trying to suggest is that the 46 articles of the declaration give us great guidance as to how we are to respect the decision-making procedures and aspirations of Indigenous peoples. We currently don’t have that in our law. We have a broad, vague, ambiguous idea that the honour of the Crown has to be fulfilled, and there are now requirements that are part of the honour of the Crown being fulfilled, but we don’t have chapter-and-verse articles. These chapter-and-verse articles have the directive capacity to say to proponents, to Indigenous peoples and to courts, “Here is what is required when you’re engaging in free, prior and informed consent.” Rather than courts, Indigenous peoples or governments making it up, we have particular words here that can draw us into a more defined conversation. Yes, there’s a gradualness to that. There are things that will develop through that. The meaning will become clearer as we engage in that process, but right now we’re involved in consultation and accommodation almost like throwing darts at a dartboard. This will give us a greater precision and a greater guidance in our trajectory in coming to the answers to those questions.
Senator Patterson: Thank you.
Senator McCallum: Thank you for your presentations. As an Indigenous person, I have always lived with uncertainty and lack of clarity in decision-making in my life.
I wanted to shift this conversation back to the rights of Indigenous people and Canada moving to support true self-determination and self-government, which are core concepts in nation-to-nation building. I want to look at how self-determination and decision-making are defined and shaped and who defines it.
Canada stated in their formal response to the Mi’kmaq in the 1980s that self-determination “cannot affect the national unity and territorial integrity of Canada.” That came from Professor Nichols’s article, We have never been domestic. In there, you also stated:
As Tully reminds us, “If the Constitution does not rest on the consent of the people or their representatives, or if there is not a procedure by which it can be so amended, then they are neither self-governing nor self-determining but are governed and determined by a structure of laws that is imposed on them. They are unfree. This is the principle of popular sovereignty by which modern peoples and governments are said to be free and legitimate.”
Does the current body of law place barriers to self-determination? If so, how will UNDRIP help towards working out this problem?
Mr. Nichols: Yes. The current model for section 35 does place barriers to Indigenous self-determination. If we look back at Sparrow, the first case to actually interpret the meaning of section 35, when the court looked for guidance to figure out what this provision means, the first place they went was an early 19th century decision of the United States Supreme Court called Johnson v. M’Intosh, which is considered to be precedent basically for the Doctrine of Discovery. That’s a 19th century European legal fiction that allows European Christian people to come to a place and to take the land by merely being there, by discovering it. That is an international legal principle from the 19th century, and it was used to build up our version of section 35.
That’s what led to the idea that, in the words of Sparrow, there’s never been any doubt that the Crown was sovereign, had legislative power — which we’d have to assume was plenary — and underlying title, in direct face of all of the treaties, which actually speak to the fact that legislative power and underlying title should have been shared back to the 19th century. So it covers that over.
We have, at the basis of our Constitution, already international law that is inhibiting Indigenous peoples from playing their role as founding partners of Confederation. As founding partners of Confederation, they do not challenge the territorial integrity of Canada. They’re not here to secede. They’re here to share legislative power and underlying title to the lands. Our current case law inhibits that.
If we compare Sparrow to the Secession reference, we see the distinction. In the Secession reference, the Quebecois people are dealt with by a directly popular sovereignty framework. If they raise the idea that they want to leave, that binds the other parties of Confederation to sit around the table and to hammer out an agreement. That’s what the court was there to set up. Why is that different from Sparrow? There’s no explanation. The only explanation is the Doctrine of Discovery.
UNDRIP is a set of international principles that helps undo and decolonize our Constitution. If we don’t do that work now, we tend to, I think, make the mistake that our current case law is somehow that the status quo is stable. The status quo is not stable. Any example that we can grab will show us that — for instance, the TMX decision. Since the introduction of the Haida framework in 2004, we’ve had 15 years of litigation to provide guidance to third-party proponents to get a pipeline done, and it can’t work. That is not legal certainty. Where that comes from is the inability of the courts to move past this idea of unilateral and overwhelming Crown sovereignty. We’re already moving past this in our case law, but we’re in knots, and this provides resources.
Mr. Borrows: My view is that self-determination will become enhanced and facilitated under Bill C-262 as Indigenous peoples themselves will implement UNDRIP. It would be very ironic if we expected governments to exist and abide by these standards and not require our own government as Indigenous peoples to do the same thing.
Article 1 of the declaration says Indigenous peoples have the right to the full enjoyment, as collectives or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations and the Universal Declaration of Human Rights and international human rights law. What things, then, should our people expect of our own governments? What’s included? There are rights to religion, spiritual beliefs and practices. That is, our governments as Indigenous peoples have to respect spiritual beliefs and practices, speech and expression, association, life, liberty and security, family togetherness, a right not to be discriminated against by their governments, the privileges and immunities of citizenship, language, education, labour fairness, administrative law procedures like notice, fairness in hearings, health care and gender equality.
We have the right to self-determination. It’s not something that’s given to us by governments. It’s a human right. But when our governments exercise those rights, they have to do it consistently with the broader human rights that are there. What UNDRIP does to enhance self-determination is it doesn’t just speak to the government and say, “You need to change your ways.” It also speaks to Indigenous peoples and says that as we exercise these rights, we need to do this in a manner that’s in accordance and is, again, fair with these broader provisions.
We all have work to do. But, again, it’s work that’s directives. It points us to something rather than send us into a free-for-all about what it is that these principles of governance or law have to be. Well, they’re right there in the document, as I just listed a second ago.
Senator Christmas: I had several questions, but I’ll focus on one.
Professor Borrows, you mentioned that you see the UN declaration as an economic development instrument, and you mentioned that the word “economics” appeared 16 times in the document. I did a quick search, and I think you’re correct on that. My question is this: Can the declaration open a door for greater prosperity for Indigenous people? If so, can you give us some examples of how that greater prosperity can be achieved?
Mr. Borrows: Yes. I teach in the business school at Simon Fraser University, and I teach largely Indigenous M.B.A. students. There are 30 students a year that come to that program. They’re coming from all walks of life. They’re very capable and accomplished. By taking off some of the fetters that are currently in place under the Indian Act and the other things that Professor Nichols has been talking about, Indigenous peoples, these people who are entrepreneurial and want to create healthy, sustainable economies for themselves, their families and their peoples, will be able to do so.
There’s a phrase that’s been articulated called “Indigenomics,” which is Indigenous peoples using economies in a way that includes their own kind of normative positions. This idea of Indigenomics can be seen in the work of Dara Kelly, a Stó:lō woman who has her PhD in business and also works at Simon Fraser University. She talks about economies of affection. In Stó:lō communities, there are kinship ties, witnessing opportunities, knowledge transfers and the nurturing of political relationships through feasting, gifting, witnessing, singing and other kinds of things that are materially based. It will involve not just the beauty of the stories or the sound of the song in your ears or the wonder of the button blankets and the masks; it’s also about resources and how people marshal the redistribution and the raising of the financial means to sustain a larger community.
Those are some of the examples, in addition to the examples I gave you earlier from the Nisga’a nation, the Squamish nation, the Tsleil-Waututh, the Chippewa of the Thames that Josh talked about earlier who they have a consultation protocol and are doing a lot in economic development. As I look from coast to coast, there’s a great deal of Indigenous entrepreneurial activity that’s developing, and this document will actually help people to go to the next level and use their creativity in directive ways, because we have all of these provisions here that help us uncover those paths.
Senator Christmas: Thank you, Professor Borrows.
The Chair: Thank you very much. We have come to the end of our time. On behalf of the members of the committee, I would like to thank Professor John Borrows and Professor Joshua Nichols for sharing their expertise with the committee tonight.
Continuing with our study of Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, the committee is pleased to welcome Mauro Barelli, Senior Lecturer, City Law School, University of London; and Mr. Paul Joffe, legal counsel, Grand Council of the Crees.
Thank you both for taking the time to appear before us this evening. We will begin with opening remarks with Mr. Barelli, to be followed by Mr. Joffe. Mr. Barelli, you have the floor.
Mauro Barelli, Senior Lecturer, City Law School, University of London, as an individual: Thank you, Madam Chair and honourable senators of the committee, for inviting me here today.
I am a senior lecturer in law at City, University of London. My expertise as an academic lies in the international law dimension of Indigenous peoples’ rights. Among the issues that I’ve studied in the past decade, two seem particularly relevant to the debate surrounding Bill C-262: first, the question of the legal significance of the United Nations Declaration on the Rights of Indigenous Peoples; and second, the question of FPIC, or free, prior and informed consent. Today, I would like to focus my contribution on these two issues.
First, the legal significance of UNDRIP: As is well known, Canada was one of the very few states that voted against the UN declaration at the General Assembly in 2007. Things, however, have changed substantially since then. After a timid endorsement in 2010, Canada has now fully committed to support and, crucially, implement the declaration.
This is a welcome development that would allow Canada to align its domestic laws with international legal standards concerning Indigenous peoples. This is so because the content of the declaration reflects the international legal framework relating to Indigenous rights. It follows that complying with the United Nations Declaration on the Rights of Indigenous Peoples is what states are expected to do in order to observe their international obligations towards Indigenous peoples.
UN human rights treaty bodies such as the Committee on the Elimination of Racial Discrimination and the Committee on the Rights of the Child, just to mention a few, as well as regional human rights courts such as the Inter-American Court of Human Rights and the African Court on Human and Peoples’ Rights, have all used, and continue to use, the declaration as a reference point to define Indigenous peoples’ rights.
Domestic courts have also been active in promoting the declaration within national systems, as illustrated by the practice of the supreme courts and constitutional courts of countries such as Belize, Colombia and Mexico.
At the same time, several countries have taken or are in the process of taking steps to revise their constitutions and laws in light of the declaration. Canada is certainly acting in the right manner by committing through this bill to implement, in consultation and cooperation with Indigenous peoples, the provisions of the UN declaration.
My second point relates to a specific principle included in the declaration that has been identified, on several occasions during the discussions on this bill, as a cause of concern. I’m talking, of course, about FPIC.
With regard to development projects affecting Indigenous peoples’ lands, the declaration envisions FPIC as a principle that strengthens Indigenous peoples’ rights to consultation and participation. These are two rights which, in turn, must be situated in the broader context of the right of Indigenous peoples to self-determination. The importance of the rights to which FPIC is attached — participation, consultation and, of course, self-determination — suggests that a government’s commitment to respect and protect the rights of Indigenous peoples must include, in my view, a commitment to FPIC.
Does this mean that Indigenous peoples should enjoy a right to veto? This is not how the declaration defines FPIC, and this is not how relevant international human rights bodies have defined FPIC either.
Let’s briefly recall article 32(2) of the UN declaration. This provision establishes that:
States shall consult and cooperate in good faith with the indigenous peoples . . . in order to obtain their free and informed consent prior to the approval of any project affecting their lands . . .
The language and drafting history of this provision suggest that FPIC must be approached with some degree of flexibility. This is confirmed by the practice of UN human rights bodies such as, for example, the United Nations Human Rights Committee, regional human rights courts such as the Inter-American Court of Human Rights, and several Supreme Court courts and constitutional courts, for example, those of Bolivia, Belize and Colombia. In engaging with the question of the scope of the right of Indigenous peoples to participation and consultation, all the bodies I’ve mentioned now have subscribed to the view that the degree of participation of Indigenous peoples in decision-making processes depends on the nature and content of the rights and activities in question.
This means that, first, consultations should always be aimed at reaching consent. That is the ultimate goal; second, Indigenous peoples should always have a realistic chance to affect the outcome of the relevant consultations; and third, there may be circumstances in which Indigenous peoples should have the right not just to give consent but also to withhold it. In other words, when a project is likely to produce a major negative impact on the lands, rights and, ultimately, lives of Indigenous peoples, then states will have a duty, not only to consult, but also to obtain their consent. This is required, very importantly, to guarantee the effective protection of the fundamental rights of Indigenous peoples.
That said, article 46 of the UN declaration allows states to impose limitations on the exercise of the rights set forth in the declaration. This would obviously also apply to FPIC. The conditions for doing so would require, for example, that any limitation shall be strictly necessary for the purpose of meeting the just and most compelling requirements of a democratic society.
Before concluding, I would like to mention that with the 2014 Tsilhqot’in decision, the Supreme Court of Canada has already moved, without expressly mentioning FPIC, towards a stronger, consent-oriented interpretation of the duty to consult, which is essentially in line with the UNDRIP model of FPIC. Indeed, as part of its 10 principles respecting its relationship with Indigenous peoples, the Government of Canada has acknowledged the need to “build on and go beyond the duty to consult.”
In light of all the above, FPIC should not, in my view, be regarded as an obstacle to the passing of this bill. On the contrary, FPIC represents an international legal standard that states must embrace in order to comply with their international obligations towards Indigenous peoples. Canada is, of course, no exception. The UN Human Rights Committee, the UN Committee on the Elimination of Racial Discrimination, and the UN Committee on Economic, Social and Cultural Rights have all demanded, in the last few years, that Canada recognize FPIC within its jurisdiction. Endorsing FPIC would not only respond to these international calls but would also signal an important commitment to fully respect the fundamental rights of Indigenous peoples.
Thank you for your attention.
Paul Joffe, Legal Counsel, Grand Council of the Crees (Eeyou Istchee), as an individual: Good evening, Madam Chair and honourable committee members.
First, I’ll begin by acknowledging that we are gathered on the traditional territory of the Algonquin people. I am pleased to have this opportunity to appear before this committee.
Bill C-262 affirms the United Nations Declaration on the Rights of Indigenous Peoples as a universal international human rights instrument with application in Canadian law. This does not mean that all provisions in the declaration are immediately entrenched in Canadian law. The UN declaration is not binding in the same manner as international treaties, but it does have diverse legal effects. The declaration can be used to interpret international conventions, as well as domestic law in Canada, including the Constitution. To date, the General Assembly has reaffirmed the UN declaration 10 times by consensus. This strengthens its significance and legal effect.
In November 2010, the Conservative government endorsed the UN declaration and declared:
We are now confident that Canada can interpret the principles expressed in the Declaration in a manner that is consistent with our Constitution and legal framework.
In officially endorsing the UN declaration, the former government indicated that it had concerns with “free, prior and informed consent, or FPIC, when used as a veto.” The government’s concern was not with FPIC per se but, rather, when used as a veto. Veto implies an absolute power, with no balancing of rights. This is neither the intent nor interpretation of consent in Canadian and international law. In articles 46(2) and 46(3), the UN declaration includes comprehensive balancing provisions.
Aboriginal rights affirmed in section 35 of the Constitution Act, 1982, are subject to progressive interpretation. This is consistent with the “living tree” doctrine that applies to Canada’s Constitution. As decided by Canada’s highest court in 1984 in Hunter et al. v. Southam Inc., the Constitution must “. . . be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.”
The UN declaration is such a new social, political and, I would add, legal reality. The UN declaration is the longest negotiated human rights instrument in UN history, more than 20 years. Canada played an active role throughout this process. Regional and domestic courts and commissions are increasingly relying on the declaration. Also, a system-wide action plan has been devised within the UN.
As the UN Expert Mechanism on the Rights of Indigenous Peoples in Geneva has concluded, the UN declaration constitutes “a principled framework for justice, reconciliation, healing and peace.”
It is important and urgent that the UN declaration be extensively used to interpret Aboriginal and treaty rights in section 35 of the Constitution Act, 1982, as well as other relevant Canadian law.
The significance of the UN declaration has been further reinforced by the Truth and Reconciliation Commission of Canada, the RC. Sixteen of the 94 calls to action are tied to the declaration. Call to Action 43 calls for:
federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.
“The” framework, not “a” framework.
Thus, the UN declaration and the TRC calls to action are inseparably linked. Those who choose to undermine the UN declaration are also undermining Canada’s national reconciliation initiative.
The TRC may be the most important commission ever created in Canada. In particular, its reports serve as a critical catalyst to bring about the type of far-reaching reforms that are desperately needed in Canada.
Madam Chair, Bill C-262 and the UN declaration address development issues. I will conclude my opening statement by highlighting sustainable development, poverty and human rights.
In September 2015, the UN General Assembly adopted, by consensus, a key instrument for achieving sustainable development globally, namely, Transforming our world: the 2030 Agenda for Sustainable Development. To date, this core document has been reaffirmed by the General Assembly by consensus 43 times. In particular, states resolved:
. . . between now and 2030, to end poverty and hunger everywhere; to combat inequalities . . . to protect human rights and promote gender equality and the empowerment of women and girls; and to ensure the lasting protection of the planet and its natural resources.
In this context, the General Assembly has added, in another consensus resolution in 2015,“. . . the need to ensure that no one is left behind, including indigenous peoples . . .”
Now is the time for the government to work with Indigenous peoples to effectively realize the UN declaration in Canada.
The Chair: Thank you. The floor is open to questions from senators.
Senator Pate: Thank you to both of you for being here.
Articles 22 and 44 of the declaration talk about the rights and needs of Indigenous women and require states to take the necessary steps to ensure the protection of women and girls. In addition, from a paper that has been done by Celeste McKay and Craig Benjamin, we know that they’ve indicated that the economic, social and cultural rights of Indigenous women are indivisible from their right to be free from violence and discrimination.
I’m curious, in your opinion, how the declaration will provide sufficient protections through the human rights and the socio-economic and cultural rights for Indigenous women and how that would link to some of the work that’s being done in this country, if you’re able to comment, Professor Barelli and Mr. Joffe, in terms of the Missing and Murdered Indigenous Women. Of course, you already mentioned tying into the TRC.
Mr. Joffe: Yes. Articles 22 and 44 are critical. I can say that when we were negotiating that, it was more difficult, first, to get article 44, that equality. Once it was achieved, when we went to the American Declaration on the Rights of Indigenous Peoples, people became used to it. The same leaders — these were mostly men who had reservations — suddenly all agreed. Again, these human rights instruments helped to create more understanding, more exchange as to what it may mean, and in the end, people feel comfortable with it.
You definitely need the human rights element throughout the declaration. Celeste McKay and Craig Benjamin both are absolutely right. We know that human rights generally are all interrelated, interconnected and indivisible, so what you’re saying makes perfect sense. You have to read the whole instrument.
What is key from the point of view of women and girls, not only but what I think is key, is article 43, which talks about the minimum standard being survival, dignity and well-being. They’re all critical, but well-being is especially critical because if one is in any negotiation, in any context, and you don’t get interpretations from your point of view, in this case women and girls, that contributes or strengthens your well-being, that is not a legitimate interpretation of the declaration.
All of this has to fit together. There would be, depending on whatever fact situation you might pick, a different combination of articles. If we’re picking culture, there may be certain roles for women. People say that when it comes to language, it’s usually women who are leading on Indigenous languages. Again, all of these different facts would lead to a different way of expressing, but basically, the whole declaration applies.
That provision you mentioned, article 22, mentions persons with disabilities. They mention children and youth. What that means is — and it’s the same for women and girls — one would take the declaration and read every provision through the lens of either women and girls, if that’s what you’re dealing with, or persons with disabilities, or children, or elders are mentioned, so you get a whole new range of how you interpret this declaration.
Mr. Barelli: would also mention that article 1 of the declaration establishes the recognition of the rights of Indigenous peoples as a collectivity but as individuals as well. In fact, it is one of the pillars on which the declaration was construed, this combination of both collective and individual rights, therefore going to the benefit of individuals and, in this case, in relation to your question, to women.
Certainly, having specific provisions with regard to that issue will help. Of course, the declaration in itself does not provide the answer to every individual question or problem, and the bill has this action plan which has to be carried out throughout a significant amount of time. That is a recognition of the complexity of dealing with so many different issues, which are all eventually related, as my colleague just said right now.
Senator Pate: Have you seen anything internationally in terms of implementation of the declaration in other parts of the world that we could learn something from or we should be aware of in this regard or more generally?
Mr. Barelli: There are plenty of examples around the world. Then, of course, examples can be taken from states with Indigenous peoples. I can refer to you a very recent study conducted by the Permanent Forum on Indigenous Issues just about two years ago, 2017, on the occasion of the tenth anniversary of the declaration. The study focused on measures taken to implement the declaration throughout the world. There are good examples from Ecuador, Bolivia, Costa Rica, El Salvador and Mexico, and these are examples of states that actually amended their constitution. We’re not just talking about states amending national laws as such, but these are actually states that have taken steps to amend their constitution.
Then, of course, there are also states that have amended important national laws in light of the declaration. Interestingly, these examples include states from Africa. Congo and Kenya constitute two examples.
Ideally, people would have liked to see more efforts and more concrete examples of successful implementation after so many years, but there are examples already in place. In that sense, Canada would not be the first country to actually take concrete steps to implement the declaration.
Mr. Joffe: I want to add one thing. You may have heard in the news that Canada is the first country to implement the UN declaration. What Mauro is saying is that that is not accurate. They have done amazing things. The city of Mexico in their constitution — it’s amazing how elaborately they have expanded the provisions so it has meaning for Mexico. You take Ecuador and, again, it’s in their constitution. It doesn’t only apply to the declaration, but in that country they lift declarations to a higher level than national legislation.
Senator McPhedran: Thank you both for being here.
I would like to look more closely at article 46 with you. I’d like to situate my question with reference back to a number of other articles in the declaration. This is a rough number, but I would say 8, 10, 19, 21, 26, 27, 28 and 32, all of which, to my reading, have elements of free, prior and informed consent and/or some form of economic development or economic ownership.
I’d like, in particular, to ask the question in the context of 26(2), which states:
Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
My question is to take this and link it up to article 46, and in particular, Professor Barelli, to your point that article 46 allows scope not only to respect rights but also to respect state’s sovereignty to the extent that it may actually limit rights.
To take the question a bit further, I’m particularly interested if you have any aspect of your answer that would address extractions, noting, of course, that this is an agreement among states. It has state parties and it does not have obvious corporate parties, but I also think it’s worth seeing that reference is made in a number of places in the declaration to persons. At least in Canada, “persons” includes corporations, which has turned out to be a challenge for us in terms of our own Charter of Rights and Freedoms.
I know it’s a bit of a freewheeling question, but I think underlying a lot of the discomfort expressed by some members of our chamber around this particular bill is perhaps the subtext around extractions and the extraction industry, so I think it would be good if we maybe just took this one on and talked about it.
Mr. Barelli: Thank you for the question.
Yes, you’re right, there are many provisions of the UN declaration that either directly or indirectly deal with free, prior and informed consent. I would agree with you that the provisions on land rights obviously become the first candidate. In fact, I believe that the right to self-determination, land rights and FPIC must always be considered in combination. You need each of these three pillars in order for self-determination, in particular, to work. You cannot achieve self-determination without land rights. You need to have FPIC in order to fully enjoy land rights, and this brings you back to self-determination. This is the first thing to say.
In terms of 46, the declaration doesn’t do anything special or unique in terms of international human rights law. A fundamental principle of international human rights law is that the majority of human rights can be limited. There are only a few examples of absolute rights as such that can never be lawfully restricted by governments. For example, the prohibition of torture would be one example. The declaration is no exception. Therefore, states have the possibility of relying on these provisions when it comes, for example, to land rights and when it comes to exploitation of resources found on these lands.
The key language of the provision to which you are referring is as follows:
The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.
Therefore, having established that any consultation, in order to be meaningful, must have the aim of achieving consent, and then having established that — and I’m saying this based on the understanding of FPIC that has emerged quite clearly at the international level since the adoption of the declaration. In order for FPIC to be meaningful, there has to be a recognition for Indigenous peoples not just to give consent every time. In order for FPIC to be meaningful, in order for the right of Indigenous peoples to participate in decision-making processes, then there may be circumstances in which the right is not just to give consent but also to withhold it. This would require a balancing act on the part of actors involved there with respect to what is at stake, what rights are at stake, the extent of the infringement and what the benefit would be of going ahead without the consent. Would this benefit outweigh the disadvantage which would be caused to Indigenous communities affected?
These are all considerations that definitely apply to the example that you said. Therefore, I think that in itself FPIC provisions should be reassuring enough to states and governments that are particularly concerned about it because, as both of us have said now, the declaration does not recognize such a thing as a right to veto any sort of proposal without any context to it.
On top of that, we have the provision of article 46(2), which is further protection, in a sense, for states, which clearly can maintain their position, and they can argue in favour of going ahead with certain provisions without the consent if they believe that doing so would be lawful on the basis of article 46(2).
Senator McPhedran: And a compelling requirement of a democratic society.
Mr. Barelli: Yes. That’s right.
Mr. Joffe: Yes. I won’t go in any order but will try and read some of these points. Mostly the declaration deals with Indigenous peoples and states. I’ve read where they say it doesn’t deal with corporations, but if you look at article 40, and that’s the right to an effective remedy, they say in it:
. . . disputes with States or other parties.
So those are key words, and that changes things. In other words, this declaration wasn’t meant just between states and Indigenous peoples.
The other thing is, lately, the UN said, in terms of the convention relating to persons with disabilities, said that it was a human rights and development instrument because the goal was that persons with disabilities should develop further. Well, this instrument is clearly a human rights and development instrument.
Professor John Borrows focused on economic development, but it covers social, economic, cultural development, political development — all forms of development. It’s important to see it in terms of development because in any discussion — let’s say there’s a developer — it’s important that the developer also knows that there’s development on the other side. Some of it may be shared in terms of economic development, but there are other types of development that have to be able to breathe and to thrive. So again, we get into some interesting things.
The other thing I point out is, and I don’t know if you do this, but in my humble view, you should always number the 24 preambular paragraphs; otherwise, you’ll never find them. But after a while, you’ll know the numbers. I call it PP1 to PP24. PP11 talks about:
. . . Indigenous knowledge, culture, traditional practices contributes to sustainable and equitable development and proper management of the environment.
You have a mention there of sustainable development. In those days, you didn’t have the 2030 agenda, so what we did was put in sustainable and equitable development, since development wasn’t really given much meaning as it is now. Equitable was to cover other things like it should respect human rights and it shouldn’t be in some ways causing more problems than what’s supposed to be the positive.
The other thing I want to quickly mention is that with the right of self-determination — this relates to article 46(2) and (3) — we asked Canada, because we used to have meetings before each negotiation session, near the end, not always, and sometimes the relationship was quite shaky — and we said: “What do you need? What does Canada need, in your view, in order to agree to put in the right of self-determination?” They mentioned that they’re looking for harmonious relationships. They don’t want to put in things that will cause more conflict. So we went away and we drafted, and that’s why you have all those elements in article 46(3). What we picked were the key principles that already exist in the Canadian legal systems. If you check all those elements, they’re all part of Canada already. When we put it in that way, we showed them and we said this would be the balancing, so if anyone comes forward and says, “This provision, it’s going to go way too far,” no, we have general provisions that balance and can take into account any fact and law situation.
I’m just putting that out there. Thank you.
The Chair: We’re getting close to our time. I think there’s time for one more questioner.
Senator LaBoucane-Benson: Thank you for your presentations.
Mr. Joffe, my question is for you. I think that there is an idea that if UNDRIP were to pass, that somehow the outcome would be unknown, that we are kind of jumping off a cliff and there’s a lot of unknown about what rights Indigenous people would have. I happen to believe that there are already some examples in Canada that would tell us how this might roll out. One of them is probably the Grand Council of the Crees. Would you agree that the special relationship the grand council has with the federal government allows them to operate in kind of an UNDRIP situation already?
Mr. Joffe: I should mention the Grand Council of the Crees. As soon as the James Bay and Northern Quebec Agreement was entered into in 1975 — I represented Inuit then, not Crees — both the federal and provincial governments figured, “Hey, we extinguished their rights. We don’t have to do anything. We don’t have to fulfill any of the many chapters in this treaty,” as it came to be called. So the Crees sued both governments every year from 1977 to 2002. Finally, the government said, “This is crazy. This is not good for any of us.” That’s when they entered into agreements. The Crees now have the most harmonious relationship one could imagine, both with the Quebec government, especially since they’re closer, and also the federal government.
I believe that that’s what’s going to happen. It goes to what John Borrows was talking about. When people are not threatened, they can afford to sit down and hear with a more open mind what the other party is saying. But if they’re threatened, if they feel it’s the same old thing and they see it in terms of colonialism and not human rights, that they’re second class and subordinate and they’re going to be pushed aside, then you get the negative relationships.
The last thing I’ll say is that’s why the Crees have entered into somewhere around 90 agreements with both government and corporate entities.
Senator LaBoucane-Benson: I wanted you to make the point that resource development has not stopped. As a matter of fact, it’s flourished under these agreements because there is an equal partnership at the table. Do you foresee that across Canada, and if these relationships could be built, that we could see great projects happening across Canada as a result of this?
Mr. Joffe: That’s what I see. If you take B.C., B.C. right now has a lot of tensions. It’s a place of real conflict, and they litigate all the time. I believe that as they enter into more agreements, they will be able to open up and lessen the litigation. When you start talking together, you can really grow, and you’d be surprised how fast it can go in another direction that’s positive.
Senator LaBoucane-Benson: Thank you, Mr. Joffe.
The Chair: It’s 8:30. We do have to have an in camera meeting on drafting instructions for Bill C-97.
Senator Tannas, you have a question? I think we will allow that. It will go a bit late for the in camera instructions.
Senator Tannas: I’ll be very quick.
Mr. Joffe, we met before, you and I and Mr. Saganash. Did I understand it that you assisted Mr. Saganash in the drafting of the bill? Okay, good. I thought we should get that on the record.
Mr. Joffe: I just assisted. I’m not the main drafter.
Senator Tannas: Understood. You held the pen, but it was his idea; right?
Mr. Joffe: I wasn’t there right at the beginning. I don’t even know who he used. But then we evolved as we went.
Senator Tannas: As you went through the different iterations of the bill over time?
Mr. Joffe: Yes. And you have to go through a legislative drafter. They will produce something, and we’ll say, “Well, you changed the meaning.” So you work it out so that all parties are satisfied.
Senator Tannas: That’s fine. It’s not a “gotcha” thing. I just wanted to get that clear.
I heard you say that the declaration is not binding. Did you say that in the beginning? I’m trying to get to this idea of whether Bill C-262 enhances or strengthens the applicability in Canadian law of UNDRIP as opposed to merely accepting UNDRIP, which Canada has done now. I’ve heard different stories, and I’d like to know what your interpretation is. I thought I heard you say, “No, it doesn’t really.”
Mr. Joffe: What I said is actually the same as what the former Special Rapporteur, James Anaya, has said. We both reached these conclusions independently, and that is the declaration is not binding in the same manner as treaties.
Senator Tannas: But I’m asking about Bill C-262.
Mr. Joffe: But it has legal effects.
Senator Tannas: Is Bill C-262 more binding on Canada than UNDRIP by itself as we have accepted?
Mr. Joffe: I think it’s an agreement to work together, as I think Professor Borrows was getting to. In order to figure out how to conform more to the UN declaration, you have to meet together and you have to discuss. You have to have a process so that people feel there’s a place to do it. If you don’t have a process, people say, “Well, we have to go to the courts,” and the courts will never create that harmonious relationship alone.
Senator Tannas: Thank you.
Mr. Barelli, you raised an important issue here that none of us had known about. I had always thought there was no country that had incorporated UNDRIP into its laws. Now I hear that Bolivia, Colombia, Ecuador, Mexico, Congo and Kenya have done so, and all of them are in the bottom half of the corruption index, so we can take their laws with a grain of salt. But are there any countries that we might consider ourselves equivalent to in terms of a modern economy and a high level of respect for laws and so on?
Mr. Barelli: Some of the countries you mentioned are actually quite well known for being quite progressive in terms of constitutional law and constitutional arrangements.
Senator Tannas: So they’re just corrupt, then?
Mr. Barelli: I don’t see the relevance of that point in connection with implementing provisions of the declaration. These countries have revised their constitutions on the basis of UNDRIP or have amended their laws in light of UNDRIP.
Senator Tannas: Thank you.
Senator Patterson: Madam Chair, I have a point of order. First of all, I’m the critic of the bill, and I had hoped to be able to ask at least one question of these important witnesses.
The Chair: I don’t have to give you time.
Senator Patterson: MP Saganash said 99.9 per cent of the witnesses before the House of Commons committee had no problems with the bill. I’m the critic, and you’ve heard from witnesses who haven’t really been critical.
But the second point is the meeting notice today says these two witnesses are appearing as individuals on the second panel from 7:45 to 8:45. We’re 10 minutes short of 8:45, and you’re depriving me of my opportunity to ask even one question.
The Chair: I think if you look at the notice paper, there should also be — do you have it in front of you, please?
Senator Patterson: I have it in front of me. It says two witnesses, 8:45.
The Chair: It also includes an in camera discussion.
Senator Patterson: With no time indicated.
Senator Plett: No, it doesn’t, Madam Chair.
The Chair: It does.
Senator Patterson: It says number 1, four witnesses, 6:45 to 8:45, number 2, in camera and no time indicated.
The Chair: Right.
Senator Patterson: Presumably after 8:45. I’m fine with staying the work on the drafting, but I don’t think it’s fair that the deputy chair had to beg to be given one question.
The Chair: He did not have to beg.
Senator Patterson: Well, I begged on his behalf, and you agreed one of us could ask a question.
The Chair: Yes. We were trying to leave time because our meeting time is until 8:45. Typically, when we have an in camera discussion, we adjourn 10 to 15 minutes early so that we can do the in camera discussion and end at 8:45.
Senator Patterson: That’s not what the notice says.
The Chair: That may be so, but that’s been the practice.
Also, in the first round, I gave you very good leeway to ask at least three questions. I didn’t cut you off at all. In the second round, your name was not on the list until near the bottom. What can I do? There are still Senators Francis, Tannas, Sinclair and then you.
Senator Patterson: This whole process is too rushed, Madam Chair. That was the point I made when we started.
The Chair: Well, that may be so, but that’s the ruling that I made. Those are the decisions I made.
We would like now to suspend briefly. We’ll meet in camera to discuss drafting instructions for the report on 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.