THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Tuesday, October 17, 2023
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 9 a.m. [ET] to consider Bill C-29, An Act to provide for the establishment of a national council for reconciliation.
Senator Brian Francis (Chair) in the chair.
[English]
The Chair: Good morning, honourable senators. I would like to begin by acknowledging that the land on which we are gathered is on the traditional, ancestral and unceded territory of the Anishinaabe Algonquin Nation and is now home to many other First Nations, Métis and Inuit peoples from across Turtle Island.
I am Mi’kmaw Senator Brian Francis from Epekwitk, also known as Prince Edward Island, and I am the chair of this committee. I will now ask committee members in attendance to introduce themselves by stating their names and province or territory.
Senator Arnot: Good morning. David Arnot, Saskatchewan.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Hartling: Nancy Hartling, New Brunswick.
[Translation]
Senator Poirier: Rose-May Poirier, representing the senatorial division of Saint-Louis-de-Kent, in New Brunswick.
[English]
Senator Sorensen: Karen Sorensen, Alberta, Banff National Park, Treaty 7 territory.
Senator Tannas: Scott Tannas from Alberta.
Senator Coyle: Mary Coyle, Antigonish, Nova Scotia, Mi’kma’ki.
[Translation]
Senator Audette: Good morning, [Innu-aimun spoken]. Michèle Audette, representing the senatorial division of De Salaberry, in Quebec.
[English]
Senator Greenwood: Margo Greenwood, British Columbia, Treaty 6 territory.
The Chair: Thank you, everyone.
Today, we will begin our clause-by-clause consideration of Bill C-29, An Act to provide for the establishment of a national council for reconciliation.
Before we begin, I would like to remind senators of a few points.
At any point, if a senator is not clear where we are in the process, please ask for clarification. In terms of the mechanics of the process, I wish to remind senators that when more than one amendment is proposed to be moved to a clause, amendments should be proposed in the order of the lines of a clause. In other words, before we take up an amendment in a clause, I will verify whether any senators intended to move an amendment earlier in that clause. If senators intend to move an earlier amendment, they will be allowed to do so.
If a senator is opposed to an entire clause, I would remind you that in committee, the proper process is not to move a motion to delete the entire clause but rather to vote against the clause.
I also remind senators that some amendments that are moved may have a consequential effect on other parts of the bill. As a result, it would be helpful if the senator moving such amendments identify what other clauses would be impacted. Otherwise, it might be difficult for members of the committee to remain consistent in their decision making.
Staff will endeavour to keep track of the places where subsequent amendments need to be moved and will draw our attention to them. However, since no notice is required to move amendments, there might be instances where no preliminary analysis has been done to establish which amendments might be of consequence to others and which might be contradictory.
If committee members ever have questions about the process or about the propriety of anything occurring, they can certainly raise a point of order. As chair, I will listen to the argument, decide when there has been sufficient discussion of a matter or order and make a ruling.
The committee is the ultimate master of its business within the bounds established by the Senate, and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.
As chair, I will do my utmost to ensure that all senators wishing to speak have the opportunity to do so. For this, however, I will depend on your cooperation, and I ask all of you to consider other senators and to keep remarks focused and brief.
I wish to remind senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote which obviously provides unambiguous results. Senators are aware that any tied vote negates the motion in question.
Finally, I want to note that a few departmental officials from Crown-Indigenous Relations and Northern Affairs Canada and from the Department of Justice Canada are available to answer technical questions: Mary-Luisa Kapelus, Senior Assistant Deputy Minister, Policy and Strategic Direction, Crown-Indigenous Relations and Northern Affairs Canada; Kate Ledgerwood, Director General, Reconciliation Secretariat, Crown-Indigenous Relations and Northern Affairs Canada; and Seetal Sunga, Senior Counsel, Legal Services, Department of Justice.
Are there any questions regarding any of the above? If not, we will proceed.
Senator Coyle: I have a question on process. We really haven’t had a whole lot of time to look at these proposed amendments and maybe others that might be coming to the table here. I know this is very urgent legislation. I agree with the urgency of passing this legislation. I would just hope that in today’s deliberations — and tomorrow’s, perhaps — that we take time on each piece of new information that we’re receiving because we are receiving new information here today and have a really good chance to ask questions and have a conversation before we go through the usual “clause, clause, clause.”
This legislation is of such importance and there has been controversy both about getting it done quickly and about getting it done right that we ought to take the time today to listen to what each other has put on the table and have that chance to really ask the questions and not rush it. That’s all I’m asking for, Mr. Chair.
The Chair: Thank you for that, Senator Coyle. Your point is well-taken.
Okay, if there are no further questions, we will begin.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-29, An Act to provide for the establishment of a national council for reconciliation? Agreed? Okay.
Shall the title stand postponed? Agreed.
Shall the preamble stand postponed?
Senator Hartling: I just received this amendment from Senator McCallum; I think you all have it. She sent it to me last night. I said that I thought it would be better if she brought it forward; she will replace me tomorrow night. I just wanted to make you aware that we won’t talk about it today, so we’ll let her explain it, if that’s okay.
I know it’s awkward because it’s regarding the preamble and we have to go back to it. I don’t know if there is something else we can do, but —
The Chair: There is third reading, as well. It’s another option.
Senator Hartling: Okay. I wanted to make you aware that I’m not going to defend it. I’ll let it stand as it is.
The Chair: Thank you.
Senator Coyle: To clarify, are we agreeing to defer consideration of amendments to the preamble until tomorrow?
The Chair: It will stand postponed.
Senator Coyle: Thank you.
The Chair: Okay. Is it agreed? Good.
Shall clause 1, which contains the short title, stand postponed? Agreed.
Shall clause 2 carry?
[Translation]
Senator Audette: Thank you, [Innu-aimun spoken]. This is a historic moment because it’s my first bill, so I need to learn from you. At the same time, it’s an important bill. That’s why I’m putting my love and energy into it:
That Bill C-29 be amended in clause 2, on page 2,
(a) by replacing lines 25 and 26 with the following:
“governments means the Government of Canada, provincial and local governments and Indigenous governing bodies. (gouver-”;
(b) by adding the following after line 27:
“Indigenous governing body means a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982. (corps dirigeant autochtone)”.
This is my French version.
[English]
The Chair: Any comments or questions?
[Translation]
Senator Audette: Do you have any comments?
[English]
Senator Coyle: Where did it come from?
[Translation]
Senator Audette: This comes from government people, the government legal community and my experience as a woman from the Innu Nation when it comes to the importance of words. You’ll see in amendment 7, which is my part, that it will clarify the importance of using the right words.
To my knowledge, in Quebec, in other provinces and in federal legislation, terms like this are used. These are agreements we reached during our discussions, to act in conformity and to clarify the bill, and above all, not to limit ourselves in debates about interpretation. It’s important to me that the words be clear.
Also in closing, the Assembly of First Nations in Quebec is an organization that brings together Indigenous governments, but this organization is not yet a government; however, it does have a mandate from my nation. This is also why it was important for me to add this space, this entity or this Indigenous governing body.
[English]
Senator Coyle: Thank you for the clarification. It makes perfect sense, of course. This will help with the foundation for the language of further amendments.
Has this language been something that our officials from the department have looked at? Thumbs up — that’s great. Thank you.
Senator LaBoucane-Benson: I think Senator Audette said this, but I would like a little more clarification around how this is connected to the future amendment that you’ll be bringing forward. Can you give us a little more information about that? I think that this amendment is very connected to 7.1. How do they work together?
Senator Audette: I’ll try to say in English what I said in French. For example, the Assembly of First Nations Quebec-Labrador is an organization; it’s not a government. But the Innu Nation for me is my government. It’s my political entity that is a member of, such as when we go to 7.1, the amendment of making sure that the political organizations who have engagement or relationship with the government, it clarifies for me who the people or the groups are that work with the government. For me, that’s the negotiation or the debate or the discussion I had with the government on that.
Senator Martin: Thank you, Senator Audette. You said this amendment is to clarify and help us then go through the rest of the bill. But I was curious about “(b) by adding the following after line 27,” and whether as you’re clarifying, it may be limiting. I’m thinking about the amendment that I’m putting forward for the Congress of Aboriginal Peoples, or CAP, a group that had appeared before the committee, that hopes to put them back onto the list of organizations that will be part of the council and have a permanent seat. I am asking you to ensure it’s not a limiting definition but a more inclusive one.
Senator Audette: You’re good in your question for the amendment. I think it’s a discussion that we need to have when you will present your amendment.
I cannot say it will limit or it won’t, but I have to be honest that, for me, a governing body is an entity that if we were government like —
[Translation]
If we were a government, like the Government of Canada, the Government of Quebec — this is the aspiration of First Nations, this is what we want to achieve — I speak on behalf of First Nations. We have to make sure that our organizations hold their own debates and discussions on citizenship, affiliation, rights, responsibilities, and so on. If an organization claims to want to be recognized as a government or a governing body of government, I don’t believe the group you’re defending or proposing has those rights, as many other national organizations don’t have the right to be a government at this time. That’s my answer.
I understand your concern very well. You have the right to raise it, but here, the important thing for me is to remember who our political and potentially government entities are, and these are the groups we’ll be debating soon with respect to your amendment and other amendments, as well.
[English]
Senator Martin: You said it may or it may not be limiting, but your purpose for this amendment is to clarify. So if I’m asking the question, I feel that it’s important for us as a committee to know whether it will be limiting because there are later discussions that we need to have and amendments that will be important for consideration.
It doesn’t seem clear to me that it is clarifying; rather, it’s potentially limiting. It’s not something you can confirm, but from what you have just said, it seems as if it will limit.
Then I feel as though I need to fast-forward and look at my amendment first as a committee before we limit something. That is my position. I don’t know how other senators feel. But CAP is a group that was included in the House, and then it got removed at third reading in the House. They appeared before our committee. We all were in agreement that they are a national organization that has a strong membership, and they have been functioning for over 50 years. I have my talking points for that amendment in the future, but this will potentially impact what we do with that.
I would like to ask the committee today — right now — to potentially have that discussion, and we look at my amendment first, perhaps, but that’s going ahead of the order. I feel a little bit stuck. I’m sorry to pause here, but I would like to get that clarification.
[Translation]
Senator Audette: To conclude, in response to Senator Martin’s question, when I say “yes and no,” the no is not limiting. We’ve heard testimony from grand chiefs. They are not necessarily linked to a political organization such as the assembly of chiefs in this case. As far as I’m concerned, the Grand Council of the Crees or the Conseil de la Nation Atikamekw is an Indigenous political organization. That’s what I mean when I explain that yes, it may open the door for them to come here, but not for certain groups that aspire to a space and to act like a government.
I think the difference is there and it’s important. All national organizations have their purpose, but they can’t all be governments. To me, that’s valuable, important and legitimate. As an opposition political party — there are three in Quebec, and one party in power — democracy enables you to do that, so it’s the same for us. We have this democracy that’s made up of governments and first- and second-line organizations.
[English]
Senator Greenwood: I don’t want to confuse the matter, but I also have an amendment on 7.1. However, it doesn’t speak to Senator Audette’s. It’s straightforward. I think you all have a copy of it, but I’ll read it out. It’s 7.1(1):
Nothing in this Act authorizes the Council to act on behalf of, or represent the interests of, an Indigenous group, community or people that hold rights recognized and affirmed by section 35 of the Constitution Act, 1982.
My amendment goes on in sections 2 and 3, focusing on not discharging its duty as consultation by the government and that the work of the council does not displace the role of a bilateral mechanism.
I have a rationale — and I will not read that right now because it may not be appropriate — but I was trying to get at some of the witnesses’ comments that I had heard.
Senator Audette, I would like to ask you a question, just so I’m really clear: Your amendment around the term — and adding in the term “Indigenous governing body” — adds to the interests of Indigenous group, community or people. What you’re saying in your amendment is that the governing body is connected to a political body that has the right and the mandate to speak on behalf of the people. Do I understand that right?
Senator Audette: Exactly.
Senator Greenwood: I don’t know how all those things fit in, but I know I have an amendment on this as well.
The Chair: We’ll get to that one too — for sure.
Senator Greenwood: Thank you.
Senator Arnot: I want clarification on this as well. My point here is that I think Senator Martin’s amendment to add the Congress of Aboriginal Peoples to the composition of the board of directors is a separate issue and that the legislative construction would say that they are completely separate and apart. It doesn’t say in this act, even with the amendment of Senator Martin, that all members in the group that are in 10(a) to 10(d) have to be a member of an Indigenous governing body. I do not see a conflict or a consequence of the amendment that Senator Martin is making.
I just want to make sure the legislative draftsmen that are here are in agreement with that because it’s very important, in my opinion, to have both of these amendments that Senator Audette is putting forward in place — in other words the definition of “governments,” the definition of “Indigenous governing body” and the definition of “Indigenous peoples.”
It’s my opinion. I want to make sure that people that have drafted this have done it with the same intention and that there isn’t an unintended consequence that would affect the amendment that Senator Martin is trying to make.
Dr. Seetal Sunga, Senior Counsel, Legal Services, Department of Justice: Thank you for the question, Senator Arnot. Mr. Chair, could I ask the senator to repeat the question simply because we were in the back?
Senator Arnot: I want to be sure that the drafting of these definitions in the definition section won’t affect or have a consequence on Senator Martin’s motion, which is to add CAP to section 10(1). In other words, the two things are completely separate. If these amendments went through, nothing says in this act that any one of the directors in 10(1)(a) to 10(1)(d) need to be a member of an Indigenous governing body — they are separate and apart and are a completely separate issue.
Dr. Sunga: That is correct.
Senator Arnot: It doesn’t preclude CAP from getting appointed to the council.
Dr. Sunga: That is correct. As you will note, in the balance of section 10, there are a number of representative groups that are not related.
Senator Arnot: When Senator Martin was asking that question, and I had that question — my interpretation — in my mind, are you saying I’m right in my interpretation?
Dr. Sunga: Yes, I am.
Senator Arnot: Easy. Thanks for that. I have no further questions.
The Chair: Are there any other comments or questions?
Is it your pleasure, honourable senators, to adopt the motion in amendment? Okay.
Shall clause 2 carry as amended? Senator Greenwood?
Senator Greenwood: I have a question for clarification. I’m looking at my amendment. If we agree to this amendment, I would have to amend my amendment to include that kind of language. Is that correct?
The Chair: Yes.
Senator Greenwood: I’ll ask more later.
The Chair: Thank you, Senator Greenwood.
Again, shall clause 2 carry as amended? Carried.
Shall clause 3 carry? Carried.
Shall clause 4 carry? Carried.
Shall clause 5 carry? Carried.
Shall clause 6 carry?
Senator Greenwood: On page 3, I had asked for:
. . . by replacing line 22 with the following:
“between Indigenous peoples and non-Indigenous people.”
The rationale is that the proposed amendment clarifies the purpose of the council. The amendment would clarify that the purpose of the council is to advance reconciliation between Indigenous and non-Indigenous peoples. So it’s really just a round of clarification.
Senator LaBoucane-Benson: I just want to add that I think this is a good amendment. In that clause, it would be a good idea to state that it isn’t just who is reconciling with Indigenous peoples. I think Senator Greenwood brings a helpful clarification with this amendment.
The Chair: Are there any other comments?
Senator Coyle: I like the principle here.
Again, I would just like to ask if there is any reason for concern from our officials about this type of amendment.
Mary-Luisa Kapelus, Senior Assistant Deputy Minister, Policy and Strategic Direction, Crown-Indigenous Relations and Northern Affairs Canada: There is no issue. The only reference we just noticed was the inclusion of an “S” on “non‑Indigenous” because we had it elsewhere when we were looking up the language. However, it will function in this sense, as well, so we’re good with it.
Senator Greenwood: I just wanted to add that there was some wrestling around how to define non-Indigenous people, and the term that was used in section 12(1)(b) was “other peoples in Canada,” so that is another issue that might come up in terms of how to distinguish Indigenous and non-Indigenous people. That is for the committee’s awareness.
Senator Coyle: Could that be a friendly amendment to your amendment — “Indigenous people and other peoples in Canada,” just for consistency?
Senator Greenwood: I’m not sure because there are pros and cons of language. We all know that. I’d have to think on that one a little bit.
We know what the concept is: It’s a relationship between Indigenous peoples and other peoples, and other Indigenous peoples of these lands. The concept here is to — because reconciliation is not just about Indigenous peoples; it’s about everybody. So we’re trying to get to that concept and the relational nature of that concept.
Senator Arnot: I agree with the amendment. Does it help in any way to make this “non-Indigenous peoples” and add the “S” to the second?
Second, in Canada, there are two groups of peoples: Indigenous and non-Indigenous. All Canadians fit into either one or the other. Just opposing Indigenous with non-Indigenous is an all-encompassing concept that I agree with.
Dr. Sunga: One of the issues that did come up was this issue of whether to speak about non-Indigenous people or other people in Canada as a collective in contradistinction to section‑35‑rights‑holding Indigenous peoples in Canada who are defined by the collective nature. When you get into drafting, you start to think about these nitpicky issues.
It’s up to the committee to determine whether you prefer the collective — peoples or a people — a collection of individuals versus a collective. I’m not sure whether the distinction is material or not.
Senator Greenwood: With the addition of “S” on both of those — none of these groups are homogeneous; they are categories. If we have Indigenous peoples and non-Indigenous peoples, I think adding that “S” recognizes there are multiple groups, even though we use these English words to try to describe them. It’s never perfect.
The addition of the “S” — is that a process? I don’t know the process.
The Chair: We will seek the advice of the Law Clerk.
(The committee suspended.)
(The committee resumed.)
The Chair: It is moved by the Honourable Senator Greenwood:
That Bill C-29 be amended in clause 6, on page 3, by replacing line 22 with the following:
“between Indigenous peoples and non-Indigenous people.”.
Is it your pleasure, honourable senators, to adopt the subamendment?
Hon. Senators: Agreed.
The Chair: Shall the motion, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall clause 6, as amended, carry?
Hon. Senators: Agreed.
The Chair: Shall clause 7 carry?
Senator Tannas: My colleague Senator Patterson has been stuck in some very unusual weather up North; he’s been fogged in for three days and is not able to be here. He will arrive in Ottawa sometime this evening, so he will join us tomorrow at our meeting.
I have an amendment that I would like to read into the record and propose for Senator Patterson:
That Bill C-29 be amended in clause 7,
(a) on page 3, by replacing lines 24 to 29 with the following:
“(a) monitor, evaluate and report annually to Parliament and the people of Canada on the Government of Canada’s post-apology progress towards reconciliation, to ensure that government accountability for reconciling the relationship between Indigenous peoples and the Crown is maintained in the coming years;
(b) monitor, evaluate and report to Parliament and the people of Canada on the progress being made towards reconciliation across all levels and sectors of Canadian society, including the progress being made towards the implementation of the Truth and Reconciliation Commission of ”;
(b) on page 4,
(i) by replacing lines 3 to 5 with the following:
“(c) develop and implement a multi-year National Action Plan for Reconciliation that includes
(i) research on practices that advance reconciliation in all sectors of Canadian society, by all governments in Canada and at the international level,
(ii) policy development, and
(iii) public education programs;”,
(ii) by replacing lines 16 and 17 with the following:
“(g) stimulate and promote innovative dialogue, partnerships between public and private sector bodies and public initiatives aimed at reconciliation;”.
This amendment is a direct response to the issues raised by Inuit Tapiriit Kanatami, or ITK, President Natan Obed during his appearance on May 16, 2023. Senator Patterson had quoted Mr. Obed during his questions to the minister, but his words bear repeating today. President Obed said:
. . . It’s likely that the only way the Inuit could support this bill is if it was either amended to establish the Inuit-Crown Partnership Committee as the mechanism directing work on Inuit-specific reconciliation measures or if the scope of the council’s functions were narrowed and defined.
— and that’s what this is doing.
Mr. Obed’s testimony also highlighted his concerns that the scope was ill-defined and too open for interpretation.
ITK had shared their suggested amendments with Senator Patterson, and a lot of those suggestions focused on Inuit specificity. Senator Patterson believed it was important to introduce a better-defined scope but balanced with the understanding that adding too much Inuit specificity into a bill on pan-Indigenous reconciliation would open the debate as to why other Indigenous groups were not also specifically included.
This amendment is structured to put emphasis on monitoring, evaluating and reporting to Parliament as well as to the people of Canada on the progress of reconciliation. The proposed language adds the components of policy development and public education programs to the multi-year action plan, and the language in the proposed subsection (g) is taken directly from the Truth and Reconciliation Commission of Canada, or TRC, Calls to Action.
The Chair: Are there any comments or questions?
Senator Arnot: I have a question. Senator Patterson is putting these amendments forward. I know Senator Greenwood has amendments on the same section, as does Senator Audette. I understand that what Senator Patterson is doing is changing the scope, in a sense.
My question is to the three people who are putting amendments to clause 7. In my opinion, the fundamental goal was to ensure that the ITK, the Métis National Council, or MNC, and the Assembly of First Nations, or AFN, can agree on a clause 7 that they support, and that the functions would align and be in concert with what the House of Commons has presented to us.
I’m just wondering whether each one of the senators putting forward amendments can speak to this. What is the language that the committee understands is supported by the ITK, the MNC and the AFN? That’s the crux of this.
Senator LaBoucane-Benson: Regarding the three amendments that have been put forward on clause 7, the one that we are speaking about right now from Senator Patterson is for the points that are in there. The two that are coming up are for clause 7.1, which would come afterward. The one we are talking about right now does not interact with 7.1, so we’re okay in that regard at the moment.
The Chair: Anyone else?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Shall clause 7, as amended, carry? It’s a stand-alone clause.
Ms. Kapelus: On clause 7, I wanted to point out that there is already a section on reporting under 17(1). With this proposed amendment, there will be some inconsistencies in language between clause 7 and 17(1) that actually talks about the annual report. We would just recommend that people might want to take that into consideration when making a decision to support alignment with those two clauses.
Senator Tannas: We’ve already made the decision, so if you could, please, before we get to 17, give us the coordinating language, and I’ll take it on or someone can.
Ms. Kapelus: Yes. We can do that.
The Chair: Shall clause 7, as amended, carry?
Hon. Senators: Agreed.
Senator Greenwood: Forgive me if I’m asking a question with which you all have experience, but this is the first time I have gone through this in any detail.
Senator Tannas, am I to understand — and from the government response — because there is a lot to what we just agreed to that goes in various parts of this bill. So am I to understand, then, from your comment that these pieces of what Senator Patterson has put forward will be put in the appropriate places? Am I to understand that? Otherwise, it looks like this is covering the whole bill in one piece right at the beginning. Am I not understanding? Somebody help me with this.
Ms. Kapelus: It will stay in clause 7 where it says it will be.
Senator Greenwood: The government just said to us that there is a place later on in the bill — in 17, I believe — where it talks about evaluation and all those sorts of things. So would this piece then move to 17?
It would not? Would it stay in both places, then? Is that correct? Do I understand that right?
Ms. Kapelus: There would have to be another amendment made to that other section to align with this section. That’s what we were trying to flag to all because 17(1) is all about the report of the council and the annual reporting requirements. The fact that this amendment is changing the front end is just to make sure that back end aligns.
Senator Greenwood: Thank you for that.
Ms. Kapelus: It’s my first time too, senator.
Senator Greenwood: Thank you.
The Chair: Are we good to move on? Okay.
Now, new clause 7.1 — Who wants to go first on 7.1?
Senator Greenwood: I will. I have some amendments to 7.1. I would make a subamendment as well to what I’m going to read based on my conversation with Senator Audette.
Section 7.1(1) would read like this:
That Bill C-29 be amended on page 4 by adding the following after line 26:
“7.1 (1) Nothing in this Act authorizes the Council to act on behalf of, or represent the interests of, an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982.
(2) For greater certainty, the Government of Canada does not discharge its duty to consult an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982, if such a duty arises, by consulting or engaging with the Council.
(3) For greater certainty, if the Government of Canada establishes or has established a bilateral mechanism with a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982, the work of the Council does not displace the role of that bilateral mechanism.”.
This is very similar, I think, to what Senator Patterson was bringing forward. What I have done and would ask is for this subamendment where we incorporate “Indigenous governing body” — as was articulated earlier by Senator Audette — into this amendment.
I can give you the background, if you want. This particular amendment with its three sections focuses on several concerns we heard from national Indigenous representative bodies. It ensures that the council does not have consultative powers and ensures it won’t displace the role of any existing bilateral mechanisms.
I have a quote here from Cassidy Caron:
. . . this legislation requires language to ensure that the newly established non-profit will not impede the work of Métis governments, the Métis National Council, other rights holders . . . .
The Atlantic Policy Congress of First Nations Chiefs Secretariat, with respect to the national council’s work vis-à-vis the government, said that this “. . . does not constitute consultation . . . .” So this amendment is based on trying to incorporate and respond to what we heard.
As well, of course, Natan Obed from the Inuit Tapiriit Kanatami said:
. . . It’s likely that the only way the Inuit could support this bill is if it was either amended to establish the Inuit-Crown Partnership Committee as the mechanism directing work on Inuit-specific reconciliation . . . .
It would be the hope that this amendment would allow for that and create the space for that to occur. The proposed amendment addresses this concern by making it explicitly clear that if the government has established or establishes in the future a bilateral mechanism with a council, government or other entity — we could say “governing body” here — that is authorized to act on behalf of an Indigenous group with rights recognized under section 35, the council does not displace that role.
So this is really getting to that consultation piece and the bilateral mechanisms that exist between Indigenous governing bodies and the government itself. That’s what was in my mind when we put this together.
[Translation]
Senator Audette: I understand that we’re in a standing Senate committee context. At the same time, after 12 years of leadership at the assembly of chiefs, when we end up with resolutions and, in this case, similar amendments — and we have three of them — would you, Madam Clerk, have a process to suggest? Because the three amendments are similar.
Maybe we could also take advantage of the fact that, as part of the work of Senator Patterson and the small team in my office, discussions have been held with people in the government in terms of words and national organizations.
How could we be sure to be effective by combining or harmonizing amendments that look very similar? Should we absolutely proceed one amendment at a time? I had asked this question during the break, for the sake of efficiency and to try to harmonize the work, the words, the paragraphs and the repercussions they have.
[English]
The Chair: My understanding is that the three of you would get together to talk about the wording.
Senator Audette: I’m so sorry. Did everybody understand? Okay.
The Chair: Yes, we can also choose to postpone it until tomorrow. Do we agree to postpone? Senator Poirier?
Senator Poirier: I wanted a clarification on something. I know I’m new at this committee today, but when she read the three points — numbers 7.1(1), (2) and (3) — and we were following it, it was not the exact same wording as what we received.
I just want clarification. Is that because other amendments have been brought that made that change and we didn’t get a copy of it? For instance, in the first paragraph, she talks about, “Nothing in this act authorizes the council to act on behalf of or represent the interests of Indigenous groups.” In my reading, it says, “. . . community or people that hold rights.” However, that’s not what she read. Each paragraph is a little different, and I wanted some clarification on that. Why is it different? Is it because of an amendment?
The Chair: What you’re reading, senator, is the original amendment that hasn’t been moved. She is proposing a new amendment that we haven’t received yet.
Senator Poirier: Okay because it was not jiving with what I had.
The Chair: Okay.
Senator Poirier: So are we accepting something we don’t actually have a copy of? It won’t be tabled until tomorrow? Perfect, thank you.
Senator Sorensen: I had the exact same question, and now we’re postponing and you guys will chat. We’ll leave it to you to figure out.
Senator Coyle: Mr. Chair, I think this is a great process that has been proposed, that we postpone this and get the three parties together to come up with something. I think it would be helpful for us also because there may be something of benefit that doesn’t necessarily fit in an amendment but might fit in an observation. In looking at the whole of those three proposed amendments, which are basically additions of clause 7.1, it would be good if we also asked the three parties to look at the essence of the amendment itself, and then whether there are elements that maybe we don’t want to see in an amendment but might suit an observation. It’s just a suggestion.
Senator Greenwood: Not to beat a dead horse on this, but I do believe that I probably mixed it up. You would not have had what I was reading out. I did mention the word “subamendment,” but I probably didn’t do it in the proper way. When I was reading it out, I was trying to insert the notion of “Indigenous governing body,” that idea and those words that Senator Audette had already brought forward. So when I read mine, I wanted to be sure those were included. I probably didn’t do the process in the right way. I should have asked for a subamendment. I was amending on the fly. Anyway, my apologies for the confusion. I will learn a valuable lesson.
The Chair: Thank you for that clarification, Senator Greenwood.
Is it agreed to postpone consideration of clause 7.1? Agreed.
Shall clause 8 carry? Carried.
Shall clause 9 carry? Carried.
Shall clause 10 carry?
Senator Martin: I would like to move:
That Bill C-29 be amended in clause 10, on page 5,
(a) by replacing line 7 with the following:
“been nominated by the Métis National Council;”;
(b) by replacing line 10 with the following:
“Canada; and
(e) one director who may only be elected after having been nominated by the Congress of Aboriginal Peoples.”.
The Chair: Thank you, Senator Martin.
Senator Martin: If I may just support what I’m proposing, for over 50 years, CAP has advocated for the rights and interests of the non-status, status, off-reserve, Métis and southern Inuit peoples. They have often been the only voice for the off-reserve Indigenous community.
For communities that CAP represents, there has been little done in terms of reconciliation. As the National Vice-Chief of CAP, Kim Beaudin, said to the committee, “Just because our people move off reserve does not mean their trauma disappears.”
If we are to leave CAP, a national Indigenous organization, out of this bill, we are effectively discriminating against hundreds of thousands of Indigenous peoples by failing to honour the principle of the Truth and Reconciliation Commission’s Call to Action 55. It calls for reports or data that would include but not be limited to comparative funding for the education of First Nations children on and off reserves.
Bill C-29 also states in clause 16.1(b) that the minister must submit to the council an annual report setting out a comparison of the funding for the education of Indigenous children on and off reserves. How can the council properly do its job if the voice of the off-reserve Indigenous community is not represented at the council?
Further, by leaving CAP out of this bill, the government is failing on Call to Action 8, which calls upon the federal government to eliminate the discrepancy in federal education funding for First Nations children being educated on reserves and those First Nations children being educated off reserves. The council cannot achieve the work needed on Calls to Action 8 and 55 without CAP as a director of its board, and, therefore, the government is failing to fully answer the Calls to Action 8 and 55 by omitting CAP as a member.
Lastly, the Standing Committee on Indigenous and Northern Affairs agreed to include CAP, along with the Native Women’s Association in Canada, in section 10 in the other house. But it was only after the bill returned to the House of Commons that the government decided to reverse the committee’s decision, effectively silencing 800,000 voices. Reconciliation is for all and not for the government to choose which voices are heard or not. Unfortunately, that is what the government would be doing in this case.
In short, colleagues, we heard from CAP, and I think we heard a very compelling testimony, so I would ask for your support to amend clause 10, page 5, as proposed. Thank you.
The Chair: Thank you, Senator Martin. Comments or questions? Senator Coyle?
Senator Sorensen: Can you speak to (a)?
Senator Martin: This was provided by the legal team. It’s something that needs to be included and inserted. I had checked with the legal team on the wording, and so replacing number 10, one director may be elected after having been nominated for the Assembly of First Nations, by replacing line 7, nominated by the Metis National Council.
Thank you for that. Yes, just taking the word “and” out because it’s going to add the section about CAP, so taking out “and” after that particular clause. Sorry and thank you for that, Senator Sorensen. There have been so many wording changes here.
Senator Tannas: Thank you. This gets to what we heard most in the testimony. I wish there were a simpler answer. I was hoping to be guided by organizations that would have rights to a point, and those rights or obligations would come through those that were duly elected by the people. We certainly have that evidence fairly clear with AFN. Its foundation is the people who elect the people who elect what happens at AFN.
But that isn’t exactly clear everywhere, and so to me, to start excluding one organization — and I have heard arguments that this particular organization, CAP, is maybe in a bit of disarray, maybe not as well run or well-organized. I’ll say that on the record. I have heard that off the record. I do not believe that is necessarily the case, and if it is the case, I think all organizations go through issues at various times.
Not that long ago, the major national First Nations organization had to replace their leader. To me, to start judging what has been a long-standing national organization on some narrow time frame does injustice to all the national organizations. That’s my first point.
Number two is to ignore the Congress of Aboriginal Peoples, who get up every morning and think about the majority of Indigenous people who do not live in the communities that the other organizations typically represent but are, in fact, still represented by those organizations. They can vote, in many instances, for leadership in their own communities, even if they’re not there. The fact that we would ignore one and add another one arbitrarily, that being the Native Women’s Association of Canada, has been a real problem. I suggest that we are perpetuating the problem by leaving it the way it is.
I’ve heard that, over the summer, the national organizations have voiced an opinion that if we include the Congress of Aboriginal Peoples, they will no longer support the bill. I would remind us on the record today that none of them support the bill. There’s been quiet negotiations and discussions; some of us have been part of them, some of us haven’t. We’re hearing through various channels what has been approved and what has not. We’ve missed a step here, chair. I’m trying to go along to get along here, but I believe that if we are going to do our job, we should either take the Native Women’s Association of Canada out and go with the three national associations or we should add them all back in and let the House of Commons, who started this, finish it.
I support Senator Martin’s motion. I have no doubt that it will be an issue that the national organizations can engage with the House of Commons on if they want to. They can defend their positions and advocate for new ones, and we will see how it turns out. But the fact of the matter is, in all the testimony we heard, the national organizations are not in support of the bill, and yet here we are. I will be supporting the motion. Thank you.
The Chair: Thank you for that, Senator Tannas.
[Translation]
Senator Audette: Thank you very much. It’s really a personal position — one that is political, historical and real to me.
I took the time to express my opinion to people I respect, who are members of that organization. I told them to do their lobbying throughout the process, but that I wouldn’t stand in the way or try to influence, so that people would decide for themselves. My position remains the same, and that is no, for the following reasons: I recognize the work of friendship centres, Indigenous women, the Congress of Aboriginal Peoples, and at one time, other organizations on the ground. This is a debate that belongs to us and not really to parliamentarians. At the same time, colonial roots have caused us to divide, judge or quarrel.
In this case, I have no problem with an organization participating in or claiming a place in an organization like the council. I live in Quebec. The organization that is a member of the Congress of Aboriginal Peoples lost in provincial court because it was considered an NPO, not a government, and could not grant citizenship with rights and responsibilities. I have no problem with that.
However, if you invite an organization and then that organization claims rights, says it’s acting like a government, that’s where I see a difference. I live in Quebec City. It’s a city, and I don’t need to or have to participate in this organization. So, as you have the right to be a member of a political party, no vision or organization is imposed on you. It’s an individual choice.
So, in this collective choice, unfortunately, colonial laws mean that we have the Indian Act, the assembly of chiefs, the Métis. Things are heating up for them, as well as for the chiefs. We can’t be monolithic. As far as I’m concerned, it’s a “hot potato” that’s been passed on to the senators because it was debated there and changed there, and today we’re taking the odious step of telling the people we love that they’re not a political organization, but an organization that defends rights, that saves lives, that works with people who are members. I’m not a member. I’m not one of the 800,000 members because at least I have that right.
That’s why I’m telling you it’s really personal and I’ll say no. I’ll still like you if you say yes, but understand that we’re not all the same. When an organization comes to us, there’s a blind spot that goes away, and we think, these are the members of that organization, not an entire society, which is culturally, linguistically, historically and politically diverse.
I really like people who work on the ground, but in this case, it’s heartbreaking and I’ve been transparent since day one — I won’t be able to support this motion. Thank you.
[English]
The Chair: Thank you, Senator Audette.
Senator Coyle: Thank you to my three colleagues who have spoken on this so far. I thank the Congress of Aboriginal Peoples for their work and for being so clear in their testimony to us and in individual meetings with us. There is no doubt in my mind that the Congress of Aboriginal Peoples does very good work across Canada, as does Native Women’s Association of Canada, the National Association of Friendship Centres and other organizations, such as the ones Senator Audette has mentioned.
I personally feel, as Senator Audette said, that we’ve been handed a hot potato. I don’t see it as the hottest potato, actually; there are many hot potatoes. The amendment that we’ve deferred until tomorrow is going to be a really important one for us to get right.
As the Standing Senate Committee on Indigenous Peoples, I don’t know, frankly, that it’s our place to be asserting one group over another when that one group, as valid a group as it is, is not the same. It is apples and oranges for me. It’s not a representative political organization in the way that the Assembly of First Nations, the ITK and the Métis National Council are. To me, that makes sense. Those are the three national Indigenous organizations. That’s fine; I’m happy with them being here. That’s the way the bill looks, it came to us this way; that makes perfect sense. We know that some of those organizations want to nominate more than one person to this council. We also know that there’s a question about who should be nominating those who are not nominated by the ones prescribed in this bill. There are a lot of issues at play here.
Speaking for myself personally, I am not comfortable. With all respect to the Congress of Aboriginal Peoples, I do not see it in the same light as being in the same category as those three national organizations. That doesn’t mean to say that I don’t think they could petition that next process. What happens after we pass this?
Let’s say we pass it the way it is without an amendment in this particular clause. Maybe there is a seat for the friendship centres. Maybe there is a seat for the survivors organization. Maybe there is a seat for youth. Maybe there is a seat for the Congress of Aboriginal Peoples.
As a member of this committee, I’m not comfortable prescribing that. That’s where I stand.
Senator Arnot: Thank you. I support Senator Martin’s amendment and the comments of Senator Tannas. I understand the comments of others. I also reflect on what Senator Brazeau said in the Senate Chamber about this issue.
In my opinion, one seat out of thirteen seats on this national council — of CAP being on that national council — would not be fatal to the proper governance or affect the integrity or credibility of the national council and its work. So I will be supporting Senator Martin’s amendment.
Senator Sorensen: I’m really actually struggling. I met with CAP several times over the last few months, and I certainly see the benefits of guaranteed participation by the group. It’s become a bit irrelevant over these last few weeks because over the time of the committee and all the witnesses we heard, we heard from so many other groups that also felt they should have a seat guaranteed before the process of adding the other seats actually happened or was even decided on. That, by the way, is another huge problem for us in terms of how the seats should be divided.
In my mind, over the weeks, the water has gotten muddier in terms of other organizations that see themselves representative of large groups of Indigenous peoples that suggest they should definitely have a guarantee seat. The clamouring for this guaranteed seat position has not only muddied the waters, but tarnished the process.
Respectfully, I’ve said a few times that I’m not sure how we would have selected the committee, but I would have been happier if nobody had been named. That would have been the easiest, from my perspective.
I agree with Senator Tannas that if some were going to be named, it would have been clearer if it were those who we refer to as the three national organizations. Of course, with complete respect for the work that the Native Women’s Association of Canada does, they became the one whose placement we didn’t really understand; we didn’t understand why they were put there. It has put this committee in a really awkward position because, I’m just trying to remember, we need Indigenous peoples with disabilities. We need elders. We need guaranteed seats for so many groups.
CAP’s arguments are strong, and they have a huge population. But I’m not convinced it’s any stronger than some of the other testimony I heard. Again, I’m happy to be debriefed after. I do see CAP as a strong and necessary advocacy group, but I don’t necessarily see them in the same way — and this, again, could be complete ignorance on my part — as a governing body like the other three seem to be as presented to us.
Senator Tannas said that if we don’t add them, we’re going to perpetrate the problems. Unfortunately, I see the opposite: If we do add them, we are perpetrating a longer discussion. At the end of the day, my goal is to get this passed and moving forward.
I just want to close with this: Not knowing how other seats are going to be determined has been problematic. I would like to think that CAP is going to end up with a seat at the table. I would like to think that other organizations are going to end up with a seat at the table, but we don’t know. That’s a very difficult position to be in. I don’t even know what the process is. I don’t know if they’re going to apply. I don’t know how that’s going to look.
The last thing I will say is that, on a personal note, having also had many conversations with my Indigenous colleagues in the Senate, the suggestion from most of them has been that CAP not be included at this time. I’m a little lost as to what the right thing to do is, so all I can do is — as I think we should be doing with this committee — look to Indigenous peoples to help us with those changes. Those have been pertinent conversations.
The Chair: Senator Martin, would you like to respond?
Senator Martin: I’d like to hear what Senator Tannas wants to say first, if that’s okay.
Senator Tannas: I wanted to mention that one of the important breadcrumbs for me was left by a distinguished member of the Truth and Reconciliation Commission who came and gave her opinion as to what we ought to do. It was, by my reading, to include the Native Women’s Association of Canada and CAP. Now, I might have misunderstood, but my understanding is that what was said was that there were five organizations that were considered to be national organizations, and they were MNC, AFN, CAP, ITK and the Native Women’s Association of Canada. Those were the national organizations that were in their minds when they wrote it. Maybe I’m wrong.
I think it’s unfortunate that we have to make these decisions with so many questions about who is really where and what their positions are. Having had the summer for all these negotiations to take place, we don’t have their changed positions on the record.
Be that as it may, I’ve listened to the arguments. The arguments to not keep CAP on are the same arguments for the next amendment, which I will make, which is to delete the Native Women’s Association of Canada. If we are not going to have CAP, then all of the arguments that we just made against adding CAP apply perfectly to the Native Women’s Association of Canada. Let’s do that, then, if that’s what we’re going to do and send it the way many have said we think makes the most sense — the majority of us have.
Nonetheless, I’ll await the vote.
Senator Martin: Thank you to all my colleagues for their very thoughtful interventions. Obviously, we want to do what is best.
My last words of urging to our committee is that there are 13 seats, and we don’t know what’s guaranteed. We have a national organization that’s been doing work for over 50 years. It is political. The previous government has acknowledged CAP as a national entity and recognized the work they have done.
In this committee, I would say, regarding a council of reconciliation, let’s be inclusive. Let’s recognize the national work that has been done and keep the Native Women’s Association of Canada and add CAP. Then there will be other seats.
I worry, too, about the process and whether it will be inclusive and fair. Our hope is that it will be. We leave it to our officials to look at the implementation.
But on this bill of reconciliation, I just urge once more that including CAP will be inclusive and an opportunity to have a long-standing national group that is doing the work. They will duly elect a director to serve on the committee. I just leave those final words with the committee.
Senator Greenwood: I’ve been listening carefully to this conversation because I think it’s an extraordinarily difficult one and that probably belongs in our own communities. Yet we, as senators, have to face this conversation.
I value the word “inclusivity” because, as somebody else has already stated, there are many groups out there, women’s groups that have fought long and hard for Indigenous peoples’, families’ and children’s rights across this country. I suspect if we got a manual out, we would see probably 100 or 200‑plus organizations that we want to be inclusive of at the end of the day, but we know that we can’t do that.
So I’ve been searching in my mind, how do we do that? One of the things that I think never appears in legislation is there are other mechanisms and ways available to us that are outside of this. How will this roll out in implementation? If a council has a commitment to be inclusive, how would they do that? They might do that by region and have regional bodies, participate with them once a year in making decisions. Yet we’re forced to put all our eggs — it feels like — in one basket, and I think that’s extraordinarily difficult.
I’ve sat on many committees just like this one over my 30-year career. I hate to say that. It’s a long time. And honestly, the answers have never been easy; they never are. But I think if groups can work from a place of principle — and that gets into implementation. And I know we don’t talk about that because this is the letter of the law and all of that. But honestly, that’s where life really happens when I think about these things.
I do go back to who are the constitutionally recognized groups in this country — the Assembly of First Nations, ITK and the Métis National Council. So in this particular case, I find it difficult, but I will not be supporting the amendment going forward.
The Chair: Thank you, Senator Greenwood. Anyone else? Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
An Hon. Senator: Could we have a recorded vote?
The Chair: Recorded vote. Honourable senators, there has been a request for a recorded vote. I will first ask the clerk to name all of the senators present who are entitled to vote at this time.
Andrea Mugny, Clerk of the Committee: The Honourable Senator Arnot, the Honourable Senator LaBoucane-Benson, the Honourable Senator Hartling, the Honourable Senator Martin, the Honourable Senator Poirier, the Honourable Senator Sorensen, the Honourable Senator Tannas, the Honourable Senator Coyle, the Honourable Senator Audette, the Honourable Senator Greenwood and the Honourable Senator Francis.
The Chair: If you are not eligible to vote, you may withdraw from the table now. The clerk will now call members’ names, beginning with the chair, followed by the remaining members’ names in alphabetical order. Members will verbally indicate how they wish to vote by saying “yea,” “nay” or “abstain.” The clerk will then announce the results of the vote. I, as chair, will then declare whether the motion is carried or defeated.
Ms. Mugny: The Honourable Senator Francis?
Senator Francis: Abstain.
Ms. Mugny: The Honourable Senator Arnot?
Senator Arnot: Yea.
Ms. Mugny: The Honourable Senator Audette?
Senator Audette: Nay.
Ms. Mugny: The Honourable Senator Coyle?
Senator Coyle: Nay.
Ms. Mugny: The Honourable Senator Greenwood?
Senator Greenwood: Nay.
Ms. Mugny: The Honourable Senator Hartling?
Senator Hartling: Yea.
Ms. Mugny: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Nay.
Ms. Mugny: The Honourable Senator Martin?
Senator Martin: Yea.
Ms. Mugny: The Honourable Senator Poirier?
Senator Poirier: Yea.
Ms. Mugny: The Honourable Senator Sorensen?
Senator Sorensen: Nay.
Ms. Mugny: The Honourable Senator Tannas?
Senator Tannas: Yea.
Ms. Mugny: Yeas, 5. Nays, 5. Abstentions, 1.
The Chair: It’s a tie. Accordingly, when there is a tie, the motion is defeated.
Senator Sorensen: Just a quick question. When we’re through this — it doesn’t have to be answered now — but I do want to talk about how we add non-binding observations and make recommendations. That’s part of this process, right? We would do that when we’re all through the bill?
The Chair: Yes.
Senator Sorensen: I guess what I’m saying is I’ll be working on an observation to talk about this topic specifically.
Senator Tannas: Given the result of this particular vote, I will be bringing an amendment forward, for all the arguments that we’ve heard, to remove the Native Women’s Association of Canada. And I suggest, given the time, I would have that amendment ready in both official languages for tomorrow evening, if that’s okay with the committee. I see we’re at the end of our time anyway.
The Chair: Yes, okay. Thank you, everyone. We’re at the end of our time for today. We’ll continue our discussion tomorrow.
(The committee adjourned.)