THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Wednesday, April 17, 2024
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 6:45 p.m. [ET] to examine the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act, 2021 by Canada and First Nations, Inuit and Metis peoples.
Senator David Arnot (Deputy Chair) in the chair.
[English]
The Deputy Chair: Honourable senators, I would like to begin by acknowledging that the land on which we gather is 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’m Senator David Arnot from Saskatchewan. I’m the Deputy Chair of the Indigenous Peoples Committee of the Senate, and I will now ask committee members — the senators in attendance — to introduce themselves by stating their name and province or territory.
Senator Martin: Good evening. Yonah Martin from British Columbia.
Senator McNair: Good evening and welcome. John McNair from New Brunswick.
Senator Hartling: Good evening. Nancy Hartling from New Brunswick, Mi’kma’ki.
Senator Sorensen: I’m Karen Sorensen from Alberta — Banff National Park, Treaty 7 territory.
Senator Coyle: Mary Coyle, Antigonish, Nova Scotia, Mi’kma’ki. Welcome.
The Deputy Chair: And welcome to all the witnesses. Today, senators and the community, we are continuing our new study to examine the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act, 2021 — also known as UNDRIP — by Canada and First Nations, Inuit and Métis peoples.
The committee is hearing from witnesses to further refine its study on this topic. With that, I would now like to introduce our witnesses. Appearing virtually and representing the Congress of Aboriginal Peoples are National Chief Elmer St. Pierre; and National Vice-Chief Kim Beaudin.
From the National Association of Friendship Centres, we have Ms. Kelly Benning, President; Mx. Kara Louttit, Policy Analyst; and Ms. Samantha Jack, Youth Executive.
With that, I thank all of the witnesses for joining us today. The witnesses will provide five minutes of opening remarks, which will be followed by a question-and-answer session with the senators. I now invite National Chief St. Pierre to give us his opening remarks on representing the Congress of Aboriginal Peoples. Thank you.
Elmer St. Pierre, National Chief, Congress of Aboriginal Peoples: Thank you, senator. Kwe, senators. Before I begin, I would also like to acknowledge the traditional and unceded territory of my people — the Algonquin — where we are meeting today. I would also like to thank each of you who has taken the time to meet with us to discuss on this very serious panel. For the Indigenous people, the United Nations Declaration on the Rights of Indigenous Peoples Act is probably the most important piece of legislation that Canada has ever introduced, and will likely have the greatest impact on our community.
We are hopeful that the act, if honestly applied, will break down the barriers our communities are facing and allow them to advance. It can combat the racism and the discrimination being faced by community members who are still being held hostage by the Indian Act and other laws and policies. By closing the socio-economic gap, and promoting greater equality and prosperity, life should get better for the off-reserve and the non-status communities — people who are often left out and ignored.
The Congress of Aboriginal Peoples, or CAP, is hopeful that the action plan will result in legislation and a policy change, and that these changes will achieve the commitments of the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, such as self-determination and the respect and reconciliation of the rights of the Aboriginal people. This should mean fair access to programs and services that close the gap to socio-economic situations that our people face, regardless of the status or location. Despite our best efforts to communicate with our communities, many remain unaddressed.
I would like to share my time with my colleague National Vice-Chief Beaudin who will take you through some of our main concerns.
Kim Beaudin, National Vice-Chief, Congress of Aboriginal Peoples: Thank you, national chief, and thank you, senators.
In October 2020, CAP and its PTOs gathered with representatives from Crown-Indigenous Relations and Northern Affairs Canada, or CIRNAC, to raise our concerns with respect to the consultation process and, in particular, the lack of time and transparency. These issues have made it far more difficult for CAP, our PTOs and their communities to contribute to the United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan. This is important for making things better for their people.
Following Royal Assent in June 2021, almost a full year later — in March 2022 — CAP received funding to conduct engagement sessions with our communities on the action plan. Following three fulsome and productive engagement sessions, CAP submitted an initial report in October 2022. CAP has engaged in good faith and has made multiple submissions to the department on the development of the action plan, which included a comprehensive recommendation to make laws consistent. Even after the action plan was released, CAP kept working with these important regulatory frameworks and did a detailed internal review.
However, to date, we have experienced more challenges and gaps than successes and opportunities. A major challenge has been the distinctions-based approach, which is exclusive and discriminatory. This approach has intentionally separated urban and rural off-reserve, non-status, unaffiliated Métis and Inuit peoples from their kin and their kinship communities. Indigenous peoples who don’t fit into the narrow political categories are put together in the “Shared priorities” chapter, where there is no real commitment to taking action on those measures.
CAP is proud to represent a diverse group of non-status and off-reserve peoples, but the vague and unclear grouping of our voices to this section makes it hard to ensure our clear priorities. This confusion means priorities are unclear, making it difficult to implement and monitor progress.
CAP’s communities clearly and forcibly recommended the inclusion of a CAP-specific chapter within the action plan. We believe that the Government of Canada encouraged us to write our own chapter, yet, in the end, those requests were rejected. We cannot overstate our disappointment with the published action plan that so obviously minimizes our voices and the members whom the Supreme Court of Canada has recognized.
This is why we are saddened that out of all of CAP’s many thoughtful and many constructive proposed measures submitted, only Measure 90 was ultimately accepted.
To be clear, Action 90, including the CAP Daniels decision, is a positive step. This could set up a standard for CAP, and measure things like laws, policies and regulations that affect our community, both existing and new. These measures offer direction and an opportunity for policy changes to include CAP’s communities. This is essential and long overdue.
However, CAP has not been successful in scheduling initial discussions on this measure with CIRNAC. Why? That’s the question.
CAP wishes to be part of the development and ongoing operation of an action plan advisory committee. We deserve a spot at the table, and we respectfully call — once again — to be consulted in a meaningful way.
Right now, CAP considers the proposed structure and the lack of off-reserve and non-status voices to be significant risks to the success of the action plan and its ongoing implementation. Our solution is to let us be part of the discussion so we can give voice to the very real concerns in our communities.
The Government of Canada should work with all Indigenous partners. The Government of Canada must allow for more fulsome engagement opportunities with Indigenous communities. Engagement should be meaningful and long-term, not just a one-and-done approach. I’m sure we can all agree that sitting at the table to co-develop shared outcomes will have greater effectiveness than consultation and cooperation alone.
For oversight and monitoring — Measures 19 and 22 — the Government of Canada needs to involve a diverse group of voices to make sure that the action plan is put into action and monitored, overseen by everyone that it affects. Regarding funding, we need more resources to properly involve our diverse communities across the country. This is crucial to get input and recommendations for the implementation of the action plan.
As a respected national Indigenous organization, CAP’s work has always been done with the intent of creating opportunities for transformational change.
I thank you for your time and look forward to any questions you may have. Meegwetch.
The Deputy Chair: Thank you, National Chief Elmer St. Pierre and National Vice-Chief Kim Beaudin, for those opening remarks.
I will now ask Kelly Benning to speak on behalf of the National Association of Friendship Centres, but I am cognizant that if anybody else wants to speak in an opening way, I’ll let you do that. There’s lots of time for questions.
Kelly Benning, President, National Association of Friendship Centres: Good evening. I’m a Métis woman from northern Alberta, with roots in Manitoba and Saskatchewan.
I’d like to acknowledge the Algonquin Nation, whose traditional territory we are meeting on today, and I would like to thank CAP for their words as well.
I’m joined today by Kara Louttit, one of our policy analysts, and our Youth Executive Samantha Jack.
We are grateful for the opportunity to appear before you today to propose topics related to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act and the United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan for the committee to study.
In 1972, the National Association of Friendship Centres, or NAFC, was established to represent friendship centres and provincial/territorial associations, or PTAs, across Canada. Today, the NAFC consists of over 100 member local friendship centres and PTAs, offering programs, services and supports to Indigenous people living in urban, rural and remote settings.
The 2021 census counted 1.8 million Indigenous people in Canada, which accounted for 5% of the total population. Nationally, approximately 61% of Indigenous people are living in urban settings. The Indigenous population in Canada grew by 9.4% from 2016 to 2021. We continue to be the youngest and fastest-growing population in Canada. In some urban settings, Indigenous people make up 85% of the population. These numbers are projected to increase over the coming years.
This significant growth in urban Indigenous populations speaks to the utmost importance of considering UNDRIP within the urban context. For decades, the Friendship Centre Movement has been working with urban Indigenous communities in upholding their inherent Indigenous rights as both individuals and as collectives. As such, we would first like to address the significant challenges surrounding urban Indigenous peoples and the varying definitions between “urban” and “urban Indigenous,” which brings us to our first recommendation.
The NAFC recommends the definition offered by the 2021 Missing and Murdered Indigenous Women, Girls, and 2SLGBTQQIA+ People National Action Plan, which defines “urban” Indigenous peoples as the following:
First Nation, Inuit and Métis people living in small, medium and large communities, including rural, isolated and remote communities, which are: off-reserve; outside of their home community, community of origin or settlement; or outside of . . . (Inuit Homelands).
This definition reflects the diversity and complexity of the Indigenous experience in Canada and links to Article 1 of UNDRIP, where advancing Indigenous rights must include Indigenous peoples wherever they reside while highlighting their unique needs and challenges.
The NAFC recommends that the implementation of UNDRIP and the action plan should be based on a trauma-informed approach, including the provision of supports for Indigenous peoples negatively impacted by systemic racism in urban settings. The long history of systemic injustices within Canada requires UNDRIP to confront Canada’s colonial history. This aligns with Articles 2 through 4 of UNDRIP and shares priorities No. 3 to No. 18 under the areas of addressing injustices and prejudices while promoting mutual respect and understanding.
The NAFC recommends an Indigenous rights-based approach opposed to Canada’s distinctions-based approach. A distinctions-based approach leads to urban Indigenous people becoming unseen by government policy approaches, which result in inadequate resources for urban Indigenous services. A rights-based approach to UNDRIP recognizes that Indigenous rights are inherent rights. Indigenous people are Indigenous wherever we may reside. Our rights are held within us and they ought to travel with us.
Therefore, the design and delivery of services can be viewed as a practical way to address gaps in services and supports in urban Indigenous settings. It is crucial that UNDRIP be understood and implemented fairly for all Indigenous peoples, regardless of geography or distinction. The experiences of urban Indigenous people within the context of how UNDRIP impacts them, along with the friendship centres that serve them, must be understood for effective implementation of the UN declaration.
In closing, I would like to reaffirm that the inherent Indigenous rights that we, as Indigenous people, hold are carried within us no matter where we live. Marsee.
The Deputy Chair: Thank you very much. Any opening remarks that anyone else in the group would like to make?
Kara Louttit, Policy Analyst, National Association of Friendship Centres: I would like to note that the Friendship Centre Movement has been working with urban Indigenous communities in upholding their inherent rights for decades. We have noted numerous articles within UNDRIP that apply to the Friendship Centre Movement. The many programs, services and approaches to delivery are rooted in Indigenous rights. This can also be found within the many ways UNDRIP approaches Indigenous rights.
Indigenous peoples have been part of urban spaces for as long as there have been urban spaces. Many of the cities across Canada are on traditional Indigenous gathering spaces. Urban Indigenous communities are steadily increasing. We live in these urban spaces where we continue to carry our inherent Indigenous rights with us wherever we live.
Samantha Jack, Youth Executive, National Association of Friendship Centres: Historically, urban Indigenous peoples have been marginalized from funding and policy decisions involving Indigenous peoples and communities. We are often ignored in consultations or initiatives or during discussions around Indigenous rights.
This is a significant oversight given the population of urban Indigenous peoples and urban spaces. By ensuring Canadian laws and legislation are abiding and upholding Indigenous rights, the United Nations declaration implementation must include all voices. Thank you.
The Deputy Chair: Thank you very much for those opening remarks from the National Association of Friendship Centres.
Now we will move to the discussion period, and I will ask senators to ask questions.
Senator Martin: Thank you very much to our witnesses, both online and here in person.
My first question is to both. Both of you have talked about your concerns with the federal government’s distinctions-based approach. I would like to understand the issues around that and the concerns that you have more intimately. The other part would be this: What alternative would you recommend instead of that? You have mentioned some, but my first question is related to the distinctions-based approach, which has been exclusive, problematic, et cetera.
First to the National Association of Friendship Centres, please.
Ms. Benning: I would like to address that first, if that’s okay.
Like we said, friendship centres have been around for over 70 years. The first ones were in Vancouver and Winnipeg. They are neck and neck there. Anyway, friendship centres have always been what used to be called “status blind,” which meant it didn’t matter if you were First Nations, Métis, Inuit or non-status. The senator from Alberta would know there are a lot of non-status entire communities that don’t necessarily fall under the distinctions-based approach. For over 70 years, it’s worked to work with everybody.
I’m from northern Alberta, and we have a lot of people who move there. It is not unlike any other friendship centre, but, speaking from where I’m from, we have a lot of people who move there from all over Canada. To break it down and say, “Well, you’re from here or here,” doesn’t really make a lot of sense. What makes sense is meeting people where they are at, understanding the needs of the community, listening to the community and providing those supports and programs.
I don’t know if you wanted to add to that at all, ladies.
Kara Louttit: Yes, I would like to add that by prioritizing distinctions between First Nations, Métis and Inuit, Canada will never fully respond to the full spectrum of Indigenous peoples’ experiences that lead to compromising the quality of services and supports of urban Indigenous peoples with intersecting identities.
To give you a quick little example of how a distinctions-based approach can negatively impact Indigenous peoples through health care, the First Nations and Inuit Health Branch is primarily responsible for funding and managing health services for First Nations living on-reserve and Inuit living in Inuit homelands. It covers three main areas within health care: primary care, health infrastructure support and supplementary health benefits.
The primary care and infrastructure support programs are only available to status First Nations living on-reserve and Inuit living in Inuit homelands. In contrast, urban Indigenous peoples rely on access to provincial health care services, where systemic racism and discrimination are often experienced, and this can lead to people like Brian Sinclair and Joyce Echaquan. Thank you.
Senator Martin: Now to the Congress of Aboriginal Peoples.
Mr. St. Pierre: Thank you, Senator Martin, for the question.
What I got out of the distinctions-based approach is that with the budget announcement, a lot of money is going toward distinctions-based.
Within CAP, for the distinctions-based, what we got out of the government in the last four years is the three organizations — I think we went through this when we were trying to do the truth and reconciliation — which are the Métis National Council, the Assembly of First Nations and Inuit Tapiriit Kanatami. Like my sister from the National Association of Friendship Centres, we are not in there. The services are not coming to the urban areas, and what we do get is very little.
Between the National Association of Friendship Centres, the Native Women’s Association of Canada and ourselves, and other organizations, we have this little pot that we have access to, while the other organizations have a bigger pot that they access.
The problem is this: Wherever the federal government came up with this idea of distinctions-based, we are all distinctions-based — the National Association of Friendship Centres is, and CAP is because we are Métis, we are non-status, and we got status off-reserve, and we got southern Inuit. Within the National Association of Friendship Centres, they’re the same way. Their members who go to the friendship centres are the same kind of people.
How can we make this better? The only way we can make this better is to get rid of that distinctions-based approach and have every Aboriginal group equal — right across the board. That’s the only way I can see it happening.
Thank you again.
Senator Martin: Do I have time for one more question?
The Deputy Chair: I’m just going to ask Vice-Chief Beaudin to respond. Would you like to also answer?
Mr. Beaudin: Yes. Thank you, chair.
Regarding the distinctions-based approach, we really believe it’s an elitist approach. It’s so selective that it’s leaving out thousands and thousands of Indigenous people who should be at the table and have their voices being heard. Because of that, I believe that the government is dead wrong.
What it is also doing is dividing our communities, and that shouldn’t be happening — pitting other organizations against each other. I recall being at the big elders’ conference in Edmonton a few months ago. It was 5,000 people. There was a message given at the end to sum it up, and they asked the leadership of all Indigenous communities across Canada to quit dividing our people. That’s what they said: “Don’t divide us up. That shouldn’t be happening to us. It’s affecting all of us.” I got a clear message from that. We have been dealing with this for so long that, unfortunately, it’s having a huge negative impact on us.
Thank you for letting me answer that question.
The Deputy Chair: You are welcome.
Senator Martin: First of all, thank you for the work you have been doing for more than 70 years. To the Congress of Aboriginal Peoples, I know you have been doing it for more than 50 years. It’s unfortunate. This is something we need to look at very carefully.
I have one quick question for the Congress of Aboriginal Peoples. I think you addressed this in your presentation, chief, but my question is about the recommendations that you have made to the action plan — specifically the independent United Nations Declaration on the Rights of Indigenous Peoples Act monitoring and oversight committee. You said that has not been accepted, and you haven’t seen any results from that. Is that correct?
Mr. St. Pierre: Thank you for that question.
We haven’t seen anything concrete from that as of yet. But we’re looking forward to — again, hopefully it doesn’t turn out the same way that truth and reconciliation does — having a seat. Our people, even with the friendship centres and all that, should be able to sit down and put something together for our people. Why do the distinctions-based have to fight us all the time? We are all Aboriginal people, no matter how you look at it. There is nothing different between the Métis and our Métis and even the non-status First Nations. We should be sitting at that table. We’ll find out whether we get there.
The Deputy Chair: Thank you.
Senator Coyle: Thank you to our guests from the Congress of Aboriginal Peoples and from the National Association of Friendship Centres. Thank you for the work you do. I know it’s extremely important.
I want to lead by going back to the centre of this discussion, which will be this distinctions-based approach. We are really going to have to dig deep there. I want to start with you, Ms. Benning, because you led off with some statistics, which I think were really helpful. For example, you have 100 member friendship centres. I think there are 1.8 million Indigenous people in Canada, and 51% of that population is living in urban areas — cities and towns, basically, right? As well, it’s the youngest and the fastest-growing population in Canada.
Do you have access to projected data on urbanization of a population? We’re at 51% now. What do you think that’s going to look like in the next 10 to 25 years?
Kara Louttit: Based on current projections, over the next 10 years, it’s expected that there will be between 2.5 million and 3.2 million Indigenous people.
Senator Coyle: Currently, it’s 51% urban. Will there be —
Kara Louttit: Currently, roughly 1.3 million live off-reserve. So I would imagine anywhere between 2.2 million and 2.8 million would be living off-reserve by that point in 10 years.
Senator Coyle: Have you been seeing a growing trend toward urbanization?
Kara Louttit: Yes, steady growth.
Senator Coyle: That 51% will probably grow to 60%. This is really important because we’re not just planning for today; we’re planning for the future. These are stark numbers you have given us, and very important ones. We can’t ignore over 50% of the Indigenous population in Canada. We shouldn’t be ignoring anyone in the Indigenous population in Canada.
Inclusion has to be a given. How you accomplish inclusion is the question because, as I understand it — I may have this wrong, and we will ask others who come to this table — the distinctions-based approach is something that, I think, certain groups have fought really hard to get. The Inuit are not expecting to be treated the same way as the First Nations, and the Métis are not expecting to be treated the same way. Actually, they are seen for their distinctiveness, and, in being distinctive, you may have different needs.
Is there a way — there’s always a way — for an accommodation of incorporating both a distinctions-based approach in the United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan and a sister approach that is neither one nor the other? The sister approach is, as you say, more taking on the Indigenous rights. I’m not saying distinctions-based is not Indigenous rights, but is there something that could be done to accommodate — to create a tent — for all people?
Kara Louttit: Yes, in one of the reports that the National Association of Friendship Centres has developed, we have recommended that a distinctions-based approach be expanded beyond First Nations, Métis and Inuit to include other intersecting identities based on sex, gender, area of residence and other intersecting identities, like gender identity. That will help close the gaps to other distinctions outside the current policy approach to First Nations, Métis and Inuit.
Senator Coyle: How has that been received by the three national elected bodies?
Kara Louttit: I’m not too sure. I will say that this is my second week on the job.
Senator Coyle: Wow, that’s impressive.
Ms. Benning: Isn’t she?
Kara Louttit: That being said, we are currently in the process of doing a deeper analysis on all First Nations, Inuit and Métis as well as the other national Indigenous organizations and the reports that have been released so far. We will be rolling that up into a National Association of Friendship Centres analysis specifically for UNDRIP that we would like to submit and put forward.
Ms. Benning: I would like to comment too that, while I don’t have comments from those leaders, I think it would be very reasonable to think that they recognize that there are a lot of urban Indigenous people, and that many are falling through the cracks and many different supports need to be put in place. I think all three of those leaders would definitely share that view.
Senator Coyle: To probe a little bit further on that, we haven’t been talking about this action plan too much yet at this table, but we have talked about the issue of urban Indigenous people many times. When we ask the leaders of the Métis National Council, the leaders of Inuit Tapiriit Kanatami and the leaders of the Assembly of First Nations, those leaders tell us that they are there for their members — their people — no matter where they live.
I’m curious about how you work with them. What does that look like on the ground in reality? As everybody tries to implement UNDRIP, I can see the competition over resources that was mentioned by our colleagues from CAP, but there must also be collaboration. I’m just curious about how that looks.
Ms. Benning: There are many communities and regions where there is a lot of collaboration. I would never even attempt to speak for those leaders, but when you are taking a look at the urban setting, it’s really important to understand that we are not saying that we want to take anything away from distinctions-based or from our brothers and sisters who live in their home communities, but rather amplify the voice — and making sure that it is not lost — of the people who are in the urban centres, and working together toward that. There are many ways that could be done. It is done in many communities, but I think it could be done better in most communities, for sure.
Senator Coyle: That would help with what our colleagues from CAP are saying. What can be done at this critical point so that there isn’t more division of communities, and that whatever is set up is done in a way that encourages collaboration from everybody trying to do the same thing: serve the needs and represent?
Ms. Benning: When someone is residing within the urban context, it doesn’t mean that they no longer consider that home community not a part of them. Of course they do. It’s allowing that transferability and that movement.
Ms. Jack: As an example of this, I’m proud to be Nuu-chah-nulth. I’m from B.C., from Nuu-chah-nulth, which is the west coast of Vancouver Island, and I also come from Yale, which is in the Lower Mainland on the Fraser River, on my mother’s side. I am really proud of who I am and where I come from. When I saw that there was an amazing language program that my tribal council on the Island was going to run, I emailed them and called the office about getting in contact and taking this language program, but, unfortunately, because I do not reside on-reserve, I’m denied access to that programming and I’m denied access to that support.
Senator Coyle: Language is a key cornerstone of this.
Ms. Jack: Exactly. Those are just some examples of how these distinctions have come forward. I’ve had to get most of my cultural support from my friendship centre, and feel some sense of connection and culture there, because I didn’t grow up where I come from. Unfortunately, that’s the reality for a lot of youth, especially youth coming up through foster care as well.
Senator Coyle: But that doesn’t make you any less Indigenous than the next person.
Ms. Jack: No.
Senator Coyle: Right. I get it. Thank you.
Mr. St. Pierre: Senator Coyle, you mentioned the three elected national organizations. I remind you that there are five national organizations, which includes CAP and the Native Women’s Association. Although the federal government doesn’t have us going to meetings or to funerals or stuff like that, we are one of the five national organizations.
You were talking about collaboration and working together. I have attended a lot of federal-provincial-territorial meetings with the government. There are some meetings that we are not invited to for the simple reason that those three organizations will let the minister know and say, “If the Congress of Aboriginal Peoples shows up at this meeting, we will leave or we will not come.” That has happened a number of times.
We’re willing to work with anybody — any Aboriginal organization. I know for a fact that I haven’t had a meeting with our sisters from the National Association of Friendship Centres. That could very well happen. But I have had other meetings with other Aboriginal organizations, and they feel the same way. Why can’t we all get along? It’s as simple as that.
Once those distinctions-based come into effect, they come right out and say to the ministers, when they have meetings, “If CAP shows up, we won’t be there. We’ll walk out of the meeting.”
We’re willing to work with anybody because that’s the goal. It’s not CAP per se; it’s our grassroots people. That’s who we look after. That’s who we want to look after, and make sure that the service is there for them. Thank you again, senator.
Senator Coyle: Thank you very much, chief, for clarifying that. I know there are a number of national organizations, and we recognize CAP as a national organization.
Mr. St. Pierre: Thank you.
The Deputy Chair: I agree. Vice-Chief Beaudin, do you want to make a further comment on that?
Mr. Beaudin: Yes, thank you. About seven years ago, the federal government introduced the distinctions-based policy approach. Today, we have taken a look at the numbers. What is the impact of that approach? Just to give you a good idea, we know that, for example, our children who are in care across this country are increasing. You can see the homelessness issue breaking out in terms of people living on the streets — addiction issues. You have housing crises that are happening right now.
The year that they worked hard on that policy approach — in 2017, I believe — it was 26% Indigenous people who were populating our prisons. Today, it’s at 33%. That’s a 1% increase per year, and that’s only trending upward — not to mention the massive increase of Indigenous women in our prisons as well, who are federally incarcerated. This is the distinctions-based policy approach that is having that kind of impact in our communities across Turtle Island. Thank you for that.
The Deputy Chair: Thank you.
I want to mention that Senator Audette has joined us at the meeting. She is a member of the committee. Thank you, Senator Audette.
Senator Sorensen: Thank you all for being with us this evening. All of the witnesses who delivered opening comments commented, in one way or another, about how the populations you work with and represent feel ignored. The committee is going to get tired of me continuing to bring up the term “consultation,” but I’m intrigued by the term. It has become a bit of a buzzword — okay, it is a buzzword, particularly when we discuss consultation with Indigenous peoples.
I would really like to hear from each of you, and we’ll try to keep it brief. I am just now personally trying to understand the perspective of what meaningful consultation is. I don’t think we’re experiencing it that often, and — I guess — I don’t actually know what meaningful consultation would mean to you. Perhaps just a few key words from each of you as to what meaningful consultation means to you.
Mr. Beaudin: Thank you. In terms of that, for years, the Congress of Aboriginal Peoples has struggled with the issue surrounding the term “consultation” because it means something different to us than it does to Canada. Sometimes, we need to create a far better framework in terms of that process and what we want to do, because we are a grassroots organization. That’s how we reach our people. We don’t talk to, for example, bureaucrats. We want to hit the front-line people because they are the ones who really know what’s happening in our communities, and what’s happening with our people.
They deal with that every day, so when we are looking at trying to change or address policy, that’s really important to us. That’s how I look at it in a quick 30-second or one-minute summation. Thank you.
Senator Sorensen: Thank you. How about Chief St. Pierre?
Mr. St. Pierre: What I would call “true consultation” would be a situation in which all the leaders — not just the national leaders, but also the friendship centres — are sitting around a table, and whatever we’re trying to achieve, we’re there and providing input. Then, we keep it going until we are all satisfied that it works.
We cannot have just two or three people or organizations saying, “This is the way it will work. End of story. You have nothing to say about it. Or you only get a few brief minutes to talk about it.” To me, that would be about as true a consultation as you can get, I would think. Thank you.
Ms. Benning: I’ll start by saying that we are a national organization, but when it comes to consultation, I guess — for me — it would mean that the consultation is authentic, and that everybody is coming together to create a common end result. If that end result is already predetermined — which sometimes it is — then that needs to be shared from the get-go, and all the voices need to come to the table and work toward that.
It is very frustrating to go into what you think is a consultation, but the end result has already been predetermined. I also think it’s important that when you have those consultations, you include the urban Indigenous voice within it as well.
Senator Sorensen: I like that you used the word “authentic.” So, by stating that this is the end result, that adds authenticity to the consultation at that point. Thank you.
Ms. Benning: Yes, because even if I don’t agree with you, yet that’s the end result, and that’s where we need to get to at the end of the day, perhaps we need to come together and get there rather than not being so upfront about that.
Senator Sorensen: Right. I appreciate that.
Kara Louttit: I would also like to add that, as far as I’m aware, the Government of Canada doesn’t have a proper definition of what “consultation” is. For Canada, consultation can mean a SurveyMonkey survey sent to Indigenous communities, or it could mean thorough engagement on the ground within communities.
To be able to just check the box of “consultation” with a mere survey is not a meaningful way to consult with Indigenous peoples. On that note, I would definitely recommend that the Government of Canada figure out some type of binding process of consultation and exact different forms of consultation.
Senator Sorensen: If I were to read between the lines: Indigenous-led?
Kara Louttit: Absolutely.
Senator Sorensen: Thank you. Ms. Jack, tell us about the youth.
Ms. Jack: I agree with everything my colleagues have shared. My approach stems from relationship building. That’s what meaningful consultation means to me. It’s building relationships, and that’s necessary in moving forward because in relationships there is room for accountability. There’s room for transparency. That really starts with the building of trust, and I think that’s really important for the process. There was something else on my mind as well, but I completely forgot about it because I started thinking about TikTok.
Senator Sorensen: All right, let us know if it comes back.
The Deputy Chair: Thanks very much. Are there any other questions from the senators? I have one question for CAP, and it’s for the chief and vice-chief. The United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan mentions that Canada will:
Establish an independent Indigenous rights monitoring, oversight, recourse or remedy mechanism or mechanisms to provide Indigenous peoples with access to and prompt decision through just and fair procedures for dispute and conflict resolution and effective remedies for infringements/violations of their individual and collective rights.
That’s Measure 19. Have you reflected on that? If you haven’t had a chance, that’s fine, but my question really is this: Would that vehicle be a mechanism that you and your organization would be able to avail to get some of the issues resolved that you think are important for those whom you represent in the Congress of Aboriginal Peoples?
Mr. St. Pierre: Thank you, Mr. Chair, for that question.
I honestly think when it comes to the Aboriginal people across Canada, why is the federal government setting up these committees? Why aren’t they coming to the national organizations and saying, “Pick somebody out of your group”? It’s not for them to say, “You’re going to sit on it. You’re not going to sit on it. You’re not going to be there.”
I think it should be up to our Aboriginal communities, our Aboriginal leaders and national leaders to say, “Okay, we’re going to put somebody on there.” I think that would work a lot better.
It’s just like the federal government saying, “Well, you can’t drink water today.” They are telling you. You don’t dare do it. But if we did the consultations in setting up these committees the way they should be, I honestly think it should be done by our Aboriginal leaders. Thank you.
Mr. Beaudin: Thank you for that question, Mr. Chair. One additional thing I wanted to highlight is the importance of Recommendation 19. We don’t have a whole lot of faith that Canada would actually want to even include CAP. We already know what they have been doing for the last seven years or so, and we don’t have a lot of faith in that process.
If they were to approach us, we certainly would be open to it. We will not slam the door or anything like that, but, quite honestly, I don’t hold a lot of faith in what they will do, and whether they want to include us in a number of policy issues. That’s where we are right now.
Unfortunately, things will have to change dramatically for that whole policy shift to happen within Canada and government. Thank you.
The Deputy Chair: Thank you. I have one question for the National Association of Friendship Centres.
Has the United Nations Declaration on the Rights of Indigenous Peoples Act influenced the policy framework at the National Association of Friendship Centres in a tangible way so far? Do you think the act might have a role to play in the future vis-à-vis your policies and your organization? What challenges does your organization face — or what do you foresee — in implementing policies aligned with the United Nations Declaration on the Rights of Indigenous Peoples Act, particularly concerning urban Indigenous populations, perhaps, related to programming or funding?
Kara Louttit: First, I would like to acknowledge that the Friendship Centre Movement has been working with urban Indigenous communities to uphold our Indigenous rights for 70 years. Many of the numerous articles found within UNDRIP already apply to the Friendship Centre Movement. For example, much of the work that we do at the National Association of Friendship Centres is rooted in Indigenous self-determination. It is through the determination of urban Indigenous communities that directly led to the formation of the National Association of Friendship Centres and the friendship centres within urban communities to implement the programs, services and supports to meet the unique challenges and needs of Indigenous folks in urban settings.
Many of the UNDRIP articles are already directly linked to the outputs that the National Association of Friendship Centres already has in many files across social, economic, justice, health, recreation, culture and language. Do you have anything else to add?
The Deputy Chair: I don’t have anything to add, but do you?
Kara Louttit: Absolutely. For example, language is one of the many programs and services that we offer at the local level. There are many Indigenous-language classes and courses to increase languages that were removed from our peoples through systemic injustices like the residential school system. Friendship centres are one of the leading organizations to bring languages back at the local urban community level.
Ms. Benning: I would add that we have always been an organization — a movement — that includes our youth, having them at the table and respecting them for who they are in that moment. It’s about bringing youth, like Ms. Jack was saying, from all over the urban setting, and bringing them in together to offer language classes, women’s classes, drumming classes or whatever it might be. I don’t know if you want to expand on that, Ms. Jack.
Ms. Jack: Yes. I would encourage and remind us humbly that UNDRIP isn’t something new to us as Indigenous people. These are inherently ingrained in our practices that have been here since time immemorial. We live and breathe the articles that are listed in UNDRIP because it’s part of our cultural practices. It’s just reaffirming the Indigenous practices that we have in all of our communities. These are not unique — honouring the dignity of each other, practising our spiritual traditions, honouring our health care, and honouring our families, our communities and food sovereignty. These are all deeply ingrained in our cultural traditions.
When I was originally reading UNDRIP, it was kind of one of those Columbusing ideas — this discovery of Indigenous self-determination and Indigenous rights when, really, this is something we’ve lived and practised for generations.
That’s what’s really important and necessary in terms of consultation: ensuring the intergenerational aspect of encompassing what consultation means for Indigenous communities. It means honouring the intergenerational aspects, and it also means that there’s humility practised in that as well — humility in the relationships between us, as Indigenous people, looking after and being accountable to our communities, and it’s also about humility in the work itself.
The Deputy Chair: Thank you very much.
Senator Audette: I have more of a comment than a question. I want to say that I was in the Downtown Eastside two weeks ago. I met some of the amazing warriors who are saving lives and are members of the Congress of Aboriginal Peoples, or from the friendship centres, or from another grassroots organization, and I say thank you for what you do.
Last weekend, we were with a few amazing women who keep our languages alive, and one is the friendship centre of La Tuque, which was showing how well they do for their nation. I’m also involved — [Technical difficulties]— with the friendship centre in Quebec, which is MAMUK.
It’s very important that you are part of this dialogue and consultation to remind us that Quebec was built on our land. Seven Islands was built on our land. “Reserve” is a new term — on-reserve or off-reserve. To me, I’m allergic to that, where [Technical difficulties] is great. It welcomes people and it includes Quebec City.
If we can find better ways that, yes, are very formal, how can we make sure that with this UNDRIP — yes, we have leadership, chiefs and councillors. We govern ourselves as nations, but we have people who do so much outside of the Indian Act. I’m not a treaty person, so I won’t speak about that. How can we do better?
I know government has a way to consult, but we have amazing senators here also who want to change that. Maybe the answer is “not now,” but for the people I saw in the Downtown Eastside, saving lives or teaching our language, how do we reach them? How do we make sure that they are heard? Through you, I get it, but it’s always the same approach, and I believe that we can do something differently.
It’s changing in the Senate. I see it. It’s changing in the other chamber also. It’s slow, but it’s happening. Sometimes, we say you don’t represent us. Sometimes, we say you do, but still, you have something that we don’t. How can we benefit, embrace or elevate?
Ms. Benning: For me, the first thing that comes to mind is, as you know, there are more than 100 friendship centres across these beautiful lands. You guys are welcome any time. Stop in and say hello. Set up a time to come and learn and be a part of things, and find out what is going on in the centre in your area.
Like you say, the grassroots piece is essential. It’s important that those voices be elevated and brought to a national level. Making sure we have a place at the table will ensure that those voices are heard. I realize you can’t go and hang out at friendship centres all the time, but you’re more than welcome to, trusting that those voices can be brought forward in a story way or in a data way. Whatever it is that you need, we’re capable of bringing that forward, and we would love to share that with you.
I don’t know if, from a policy analyst perspective, there’s anything Mx. Louttit or Ms. Jack would like to add to that, but thank you.
Kara Louttit: I would like to add that UNDRIP and the framework are really essential to the urban Indigenous experience because it provides us protection mechanisms. Urban Indigenous people experience anti-Indigenous discrimination, violence, racism and prejudice, so these mechanisms are necessary to Indigenous peoples’ lived experiences in urban spaces as protections.
Ms. Jack: With that mechanism comes the opportunity for accountability as well. While the change has been slow, it’s important that we start being a bit more intentional in this work, and creating that good intention that carries us through that work. We know that when work is intentional, we pay more attention to it. This is really needed for all urban Indigenous communities because we don’t necessarily have the time or the resources, and when we don’t have that, we leave people behind. Unfortunately, in urban settings, that means the loss of some of our community members.
We’ve witnessed that and experienced that. All friendship centres have experienced that. We really need action, good intention and good relationships so we can address this to be able to break those generational cycles. Thank you.
The Deputy Chair: Does Chief St. Pierre or Vice-Chief Beaudin have any comment on Senator Audette’s observation and question?
Mr. St. Pierre: Not at this time. I will give an answer to Senator Audette through our policy people. We will get that to her shortly when we meet tomorrow afternoon.
The Deputy Chair: Okay. Very good then.
I think there are no other questions from senators now. Colleagues and witnesses, the time for this panel is now complete. Witnesses, I wish to thank you all for coming today. And I wish to thank my senator colleagues for participating in this discussion.
If you wish to make any subsequent submissions, please submit them to the clerk by email. Thank you all.
I would now like to introduce our next witnesses. From the Grand Council of the Crees and the Cree Nation Government, Grand Chief Mandy Gull-Masty is with us tonight. And from the Nisga’a Lisims Government, we welcome Charles Morven, Secretary-Treasurer.
I thank you, witnesses, for joining us here this evening. Each witness will have five minutes to give an opening address, and then we will enter into discussions with the senators. I would now like to invite Grand Chief Gull-Masty to give her opening remarks.
Mandy Gull-Masty, Grand Chief, Grand Council of the Crees (Eeyou Istchee) and Cree Nation Government: Good evening, esteemed members of the committee. It’s a pleasure to see you again.
The Grand Council of the Crees and the Cree Nation Government have been strong advocates for the rights of Indigenous peoples since the 1980s. At the national level on the provisions regarding Aboriginal and treaty rights in the Canadian Constitution and the international Constitution, we have participated in various capacities. We have been not only advocates but we have also participated in working groups.
Our former grand chief Ted Moses was the first Indigenous special rapporteur of the UN, and we have negotiated with Canada and many Member States over four decades toward the adoption of UNDRIP.
For the Cree, it is fundamentally important that Indigenous rights be recognized and affirmed, properly implemented and enforced domestically throughout Canada. In 1948, the United Nations Universal Declaration of Human Rights affirmed the fundamental, inalienable and inherent rights of all human beings, as agreed to by all UN Member States, including Canada. Indeed, this declaration was an inspiration for the Canadian Charter of Rights and Freedoms.
Although rights in these instruments were universally recognized, they were often denied to Indigenous peoples in Canada. Colonial and assimilation policies, including the Indian residential school system, have profoundly harmed Indigenous families and communities, and have led to intergenerational trauma that will take generations to recover from. Today, we are still discovering atrocities and violations of human rights as we continue to uncover the unmarked graves of Indigenous children on or near schools.
Residential schools and other colonial and assimilation policies have fed a vicious cycle of trauma, poverty, violence and systemic discrimination which have, in turn, increased the vulnerability, exploitation of and violence against Indigenous women and girls throughout Canada. Indigenous women and girls continue to face a disproportionate risk of human trafficking, violence and poverty, as well as the denial of protection of the law and the right to equality before the law. Healing and safety for them will require legislative reform and significant investments to ameliorate the underlying socio-economic conditions for them and their families.
As a first step forward to address these unacceptable inequities, Canada must ensure that federal, provincial and territorial legislation are fully aligned with UNDRIP. The Grand Council of the Crees and the Cree Nation Government welcome Canada’s adoption of UNDRIP and a national action plan to promote federal implementation of the UN declaration. In a recent decision, the Supreme Court of Canada unanimously concluded that UNDRIP has been incorporated into the country’s positive law. The court noted that the United Nations Declaration on the Rights of Indigenous Peoples Act recognizes that the UN declaration provides a framework for reconciliation. In section 5, the act requires:
The Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.
Canada must continue to take a coordinated, whole-of-government approach to implementing the UN declaration. All civil servants and political representatives must be educated on the UN declaration, the United Nations Declaration on the Rights of Indigenous Peoples Act and the action plan, and understand the implementation role and responsibilities. Further, as provided for Canada’s action plan, Canada should take immediate steps to establish an independent Indigenous mechanism to monitor the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act, and provide recourse and remedies to Indigenous peoples when their individual and collective rights are denied.
Canada is also currently completing its fourth Universal Periodic Review process before the UN Human Rights Council, and this monitoring mechanism would also promote Canada’s implementation of many of the UPR4 recommendations concerning Indigenous people.
The Grand Council of the Crees and the Cree Nation Government are concerned that Canada’s consultations and cooperation with Indigenous peoples on the implementation of the UN declaration and Indigenous rights appear to increasingly be taking place through large, national organizations. These large, national organizations are not representatives of the unique circumstances, needs, interests and aspirations of all Indigenous peoples, and some may not necessarily identify with them. We are one such group.
Canada must engage in direct consultation and cooperation with representatives of rights holders, like the Grand Council of the Crees and the Cree Nation Government. This direct consultation and cooperation is consistent with our nation-to-nation and treaty relationships. In implementing the UN declaration, Canada must adopt adequate measures to guarantee Indigenous peoples the right to consultation and cooperation; incorporate accepted standards of free, prior and informed consent; the duty to consult; and rights affirmed in the declaration with respect to developmental projects impacting our territories and the environment.
Free, prior and informed consent means we have a seat at the table when making decisions impacting our people and our traditional lands. Cree traditional activities of hunting, fishing and trapping, our spirituality, and our way of life all depend on the land and the resources. Without access to these discussions, we are harmed by the dialogue that is carried out.
Last year, we saw the catastrophic forest fires that raged across our traditional territories, and we highlighted an urgent need for the Canadian government to implement measures to reduce and mitigate the impact of the climate crisis on our traditional lands and activities. Canada must also invest in measures to end racism and discrimination against Indigenous peoples within broader Canadian society. Canada proposed the establishment of a national Indigenous and human rights ombudsperson and tribunal. It would be an important step in the right direction.
In their opening statement on Canada’s fourth Universal Periodic Review process, and at the launch of the national United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan, federal officials admitted much more work needs to be done. We agree with that statement. That said, the Grand Council of the Crees and the Cree Nation Government are committed to working collaboratively with Canada to support the implementation of all recommendations, Calls to Action and Calls for Justice.
We want to ensure that we are keeping in line with our nation-to-nation and treaty relationships. However, we can only support the work when we are included in the implementation process. Approximately 40 years after the drafts were produced, Canada has now adopted the UN declaration and its articles, which serve as a minimum standard for Indigenous rights in this country. We must ensure that domestic implementation does not seek to diminish, abrogate or impair these rights in any way. The United Nations Declaration on the Rights of Indigenous Peoples Act and action plan are starting points. A move toward greater understanding, collaboration, equity and justice among Indigenous peoples and non-Indigenous peoples in this country is needed and very much welcome. Thank you. Meegwetch.
The Deputy Chair: Thank you, Grand Chief Gull-Masty. I now invite Mr. Morven to give his opening remarks.
Charles Morven, Secretary-Treasurer, Nisga’a Lisims Government: Thank you and good evening. On behalf of Eva Clayton, the President of the Nisga’a Lisims Government, I’m happy to be given the opportunity to address the committee.
As you know, the Nisga’a Nation entered into the Nisga’a Final Agreement — also known as the Nisga’a Treaty — on May 11, 2000, and it’s the first modern-day treaty of British Columbia. Shortly afterward, with other modern treaties, we formed the Land Claims Agreements Coalition in which the Nisga’a Nation is the chair alongside our friends from Nunavut Tunngavik Incorporated, or NTI. A majority of the modern treaty groups make up the Land Claims Agreements Coalition, which makes up more than 40% of the land mass of Canada.
Accordingly, we view UNDRIP and the act from a modern treaty point of view. Our focus on what, from a modern treaty perspective, might be the most significant provision of the declaration is Article 37. Article 37 provides that Indigenous peoples have the right to the recognition, observance and enforcement of our treaties, and ensures that nothing in the declaration may be interpreted as diminishing or eliminating the rights of Indigenous peoples contained in those treaties.
This is essential. At the very heart of the declaration is the right of Indigenous peoples to ensure self-determination. In Canada, we have long recognized that treaties are the ultimate expression of self-determination and provide their signatories with the ultimate form of reconciliation. Modern treaties set out detailed means by which Indigenous signatories may live in dignity; maintain and strengthen our institutions, cultures and traditions; and pursue our self-determined development, in keeping with our own needs and aspirations. Article 37 acknowledges the importance and priority of these constitutionally protected agreements. Others can speak to the impact of the United Nations Declaration on the Rights of Indigenous Peoples Act and UNDRIP itself on historic treaties.
The effect of Article 37 is clear: the recognition, observance and enforcement of our treaties prevail over all other articles of the declaration. This makes sense without in any way minimizing the importance of the other articles. Much of the declaration emphasizes the rights of Indigenous peoples to self-determination; land, territories and resources; economic and fiscal relations; and culture and language — all of which are already included in the treaties.
I suggest that the question before you is this: How well has Canada succeeded in this recognition, observance and enforcement? While treaty rights are already recognized in section 35, including modern treaty rights under section 35(3) of the Constitution Act, too often those rights are not observed by politicians in their legislative initiatives, nor by the officials in their administrative actions. Officials have been reluctant to enforce modern treaty rights, especially in the face of competing claims. They prefer instead to equate our established, constitutionally recognized rights with rights that have been asserted but never proven nor agreed to. Article 37 should prevent this from continuing. The object of UNDRIP could not have been to treat established treaty rights and asserted but unproven rights in exactly the same way. The attempt to do so inevitably diminishes or debases our treaty rights, which is a clear breach of Article 37.
In order for our government to take all measures necessary to ensure that the laws of Canada are consistent with the declaration — under section 5 of the act — when enacting legislation or contemplating administrative action, the government must determine whether doing so would diminish or eliminate any modern treaty rights. It must ensure that its statutory decisions are consistent with those rights. However, in many ways, the government continues to fail to do so.
However, there have been some positive steps that have been taken. For example, an important proactive initiative to comply with section 5 is Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts, to include a non-derogation provision. As you know, the Senate passed the bill in December 2023, and it is now before the House of Commons. We congratulate the Senate for this very positive step. We hope that the House of Commons will quickly follow in your footsteps.
Finally, we also commend the government for including in the national action plan a separate chapter for modern treaty partners. In our view, it is a positive that our requests that the action plan recognize the distinction between Indigenous peoples of treaties and Indigenous peoples who do not have established rights were agreed to. This should be a helpful step toward the timely, effective and fully resourced implementation of modern treaties.
It is now time to implement those commitments in order to ensure that UNDRIP is a way to enhance and not undermine the proper recognition, observance and enforcement of our modern treaties. I look forward to answering questions from the senators. Thank you.
The Deputy Chair: Thank you, sir. We will now move to questions from senators.
Senator White: Thank you both for your presentation. That was very informative. My question is for Grand Chief Gull-Masty. I really like your thinking in terms of this Indigenous body to support implementation. I think this is the kind of tool that certainly would enable us to have a tangible and active role in the implementation.
I’m curious if you have any thoughts or advice on how this might be created and how it can be structured. My inquiry is because I hear what you are saying about how the government is of the view that if they go to the national organizations, their consultation is done. I understand that in our communities that’s not always the case. I’m really curious to hear any advice or thoughts you have on that.
Ms. Gull-Masty: Thank you. I have to agree with my colleague here in our presentation. The fact that there is a modern treaty portion in the action plan is a huge step forward. Having this mechanism and having appointed, independent Indigenous members from various types of governing structures, such as treaty or new modern land claims, really allows for a proportionate representation of the various types of Indigenous peoples in Canada.
It should be hybrid, consisting of maybe elected members of Parliament and Senate officials. It should be something that is a collaborative approach, but I think it is important to have the perspective of Indigenous peoples who are living the reality of being an Indigenous person in Canada, which is very different.
I’m sorry to say that the challenge is still there. I go to the store, and I am profiled; I go to the clinic, and I am not often treated very well. This is the reality. You can only view the implementation of this process through that specific lens. Unfortunately, you have to be born with it and live the reality of what it means to be Indigenous. I do think it is a hybrid process, and I would welcome collaboration from various levels of government at that table.
Senator White: To clarify, when you said “hybrid,” I got really excited about that. Are you indicating that the government officials would be Indigenous in addition to the Indigenous partners?
Ms. Gull-Masty: No. I believe that when you are trying to undertake this kind of work, you have to be in a teaching position as well. I would welcome those who participate in this process who are also non-Indigenous, because there is a component of teaching and sharing to those who can become advocates and allies in reporting on this implementation.
The Deputy Chair: Thank you.
Senator Coyle: Thank you to both of our guests this evening. Your remarks are very helpful as we look at this very important action plan. It is nice to have a law in place, but it is how we implement it that’s going to be really important.
Before this panel, we just met with the National Association of Friendship Centres and the Congress of Aboriginal Peoples, and they both have an issue with the distinctions-based approach. They find that it is excluding people, or has the potential to exclude people. I’m curious what you might have to say about the distinctions-based approach being the exclusive approach outlined in this action plan. Why is that important? Is it important? And might there be ways to accommodate some of the concerns that have been raised by those who feel left out by that approach?
Mr. Morven: Thank you. I’m glad you brought up that question. In the process of this whole thing with the United Nations Declaration on the Rights of Indigenous Peoples Act, I think we can relate to some of those friendship centres, because modern treaties were kind of left out of the discussion at the beginning. It has just been recently where we have gained traction to include some of these things that I spoke of in my statements, like with the Interpretation Act, which we have been working on since 2007. With UNDRIP, we were never a part of the discussion. We were never part of the discussion about the legislation in British Columbia and Canada. We can relate to what the friendship centres are talking about.
One of the things we’re talking about is when the government doesn’t respect our treaties. We are protected under section 35(3) of the Constitution Act. The Nisga’a Nation, for example, is going through a process where we’re getting hammered from all sides. People to the north and south of us are trying to encroach on our lands and assert rights on Nisga’a lands that are already protected under the Constitution. Both the provincial and federal governments are allowing that to happen.
The Department of Fisheries and Oceans, or DFO, is one of the biggest problems for us because they allow a nation to take fish from our river to sell it, and they also support and manage that with them. They treat us totally differently. They totally disrespect the Nisga’a Nation in regard to how we manage our fishery and how we’re conserving our fish, but they allow another nation to take fish and sell it for profit. There is a totally unfair thing going on, but we are slowly closing that gap.
Ms. Gull-Masty: Thank you for the question, Senator Coyle.
I think it is a challenge. As Cree Nation, we are a modern land claims treaty group. Our rights are very different from those who are treaty rights holders. Our interactions with the levels of government are very different. As much as I respect the groups that come to this table, I am speaking on behalf of rights holders. I think that individuals who service those community members and those rights holders are a distinct group on their own. Within the Cree Nation structure, we do have a relationship with various organizations that serve our clients, either on community or off community. I do think that good governance requires that you consult those organizations that you work with. For us at Cree Nation, we go above and beyond in making sure that when we bring a statement forward, we have consulted groups that are experts in the various statements that we make publicly.
It is a challenge. Regardless, as much as you try to work to have everybody represented in a certain capacity, you will always have a unique individual who doesn’t meet the criteria. I understand it is hard to define. However, I think it is important that this is an evergreen document that will continuously be built on. Refining that category is important, and I think that this Indigenous implementation group would have a capacity to be your sounding board in reflecting who should be coming to the table.
Senator Coyle: Thank you both.
That very critical point that you made, grand chief, about the fact that you are representing rights holders is a fundamental one — one that we should never forget at this table — which does distinguish your group from other groups.
I wanted to ask you about one of the things you mentioned. I believe I heard you correctly about the importance of educating civil servants on UNDRIP. Am I correct that you mentioned that? If I am correct, I think it’s a really important point, and I’m assuming you mean it’s not just for civil servants in CIRNAC and in Indigenous Services Canada. If I did catch what you said correctly, I would like to hear you elaborate a bit further on that.
Ms. Gull-Masty: Thank you once again for the question. It takes a whole-of-government approach to educate on the action plan and UNDRIP and the responsibilities of implementation, and also provide training on treaty and modern land claims. I had the opportunity to meet with many deputy ministers and assistant deputy ministers, and really tell them about the history behind the James Bay and Northern Quebec Agreement, or JBNQA — our modern land claims agreement. We presented the evolution, the relationship and the changes. We really tried to do it in a way that was not a legalese, dry presentation. We told the story of how we are living with this agreement, how we amended it, how we changed it and its evolution and impact on our nation through that evolution process.
I think this is really important. I would recommend and challenge the Senate to incorporate additional measures in having First Nations come and represent their story on how they have experienced living with a treaty or modern land claim. I really appreciated that session. It was an open session. We had a number of individuals present. I think it is important to really have that exchange and dialogue because the experience of being a beneficiary of the JBNQA is very different than the experience of being a public civil servant and interpreting it. The history behind it is also very important when interpreting it.
I believe that more of this work needs to be done. There are a number of very qualified individuals who could come forth and be able to really explain. Once again, this independent Indigenous body could be a great resource for offering that service to the public civil servants.
Senator Coyle: Could I probe just a little bit? I am wondering whether there is any crossover between that body and the national council for reconciliation, which has a job, right? A big part of reconciliation is education for the Canadian population. Would you see some crossover there?
Ms. Gull-Masty: I would. In fact, it is not a one-size-fits-all training process. There has to be something internal — maybe a more primary/first kind of learning experience, and maybe through the national council for reconciliation. I think those groups that are working very closely with the UN — commenting, advocating and bringing forth interventions to the various mechanisms of the UN — are great groups to bring in and ask questions. The Cree Nation has been one of those groups for over 40 years. We have participated and been able to see this experience through a very long period of time, and there is a lot of learning in that experience as well. Those long-standing members like Willie Littlechild, and all the people you see at the UN, would be able to give a very interesting and incredible perspective on this process.
Senator Coyle: Thank you very much.
Senator Martin: Thank you to our witnesses this evening.
I have a few questions related to what you said about modern treaty rights. First, to Mr. Morven, you talked about how modern treaty rights have not been observed and honoured, and that you have not been part of the discussion on the UNDRIP bill process in B.C. or with the federal government, and now there is a separate chapter in the action plan for the modern treaty rights.
I think you have explained some of the challenges you have had, but I would like you to describe some of the challenges specifically faced by modern treaty holders in Canada. Do you feel that those concerns have been addressed in the chapter that’s now in the action plan?
Mr. Morven: Thank you for the question. I can only speak from the experience of the Nisga’a Nation. Ever since the treaty, these are a lot of the challenges we have had: I have to speak to fisheries, because that’s where we’re most affected in the work we have put in — even before the treaty came into effect — to manage our fishery and sustain our stocks. The federal government, through the DFO, has continually fought us.
It was really good at the beginning, but when they changed administrations in the north area, there have been challenges. They seem to be trying to kill our river. When there is a shortage of fish, they close the Skeena River and the Fraser River, but they leave the Nass River open for sports fishers. They don’t treat us the same, and they are never there when we want to have meetings with them. It’s really hard to get meetings.
Also, in the area, we haven’t been consistent in regard to our fiscal financing agreements, where they are supposed to be negotiated every five years. Since treaty, we are on our third fiscal financing agreement, but it’s been amended many times.
A lot of things haven’t been followed in that regard. We have nations that have been doing work on our rivers and our tributaries which the province and the feds have never engaged with us on. There’s no consultation. We haven’t been consulted on things that are going on in our area.
Even with the provincial government, there is part of their legislation with other Indigenous communities, where they signed a certainty agreement with the Tahltan Nation but never consulted us that they were doing that. Although we are good friends with the Tahltan, there are things within their agreement that affect us if the Tahltan should make a decision, especially economic-wise; this will affect the Nisga’a Nation. It gives them more authority than us within our land.
The government just doesn’t seem to want to consult us on anything that will affect us. They are also allowing other nations to be engaged which affect only the Nisga’a and the Tahltan in our area, where they allow other nations to come in when they shouldn’t. They don’t tell us that until after because there are a lot of agreements that are signed and affect the Nisga’a Nation that we have never been consulted on.
Senator Martin: There is a separate chapter in the action plan for modern treaty rights. Are you confident that this will be well executed, or implemented, and followed based on what you have experienced so far?
Mr. Morven: We will have to wait and see. Right now, I’m not too confident, but there are some workers brought in who are strictly to deal with the modern treaties through CIRNAC, and whom we have a really good relationship with. There is promise there, but with other parts of the department, there are issues that we see.
One of the things I’ll use as an example is in regard to the policy change in terms of negotiating treaties, where they reintroduced the tax exemption. They did that without consultation with the Nisga’a, who was getting comfortable with taxation. They announced it publicly without consulting with us, so that put pressure on our government because our citizens almost instantly started calling the government and asking when they would be getting their tax exemption back.
Now they’re trying to implement their policy change with the Nisga’a Nation within Nisga’a lands because we have grown since treaty. They are only allowing us to add the tax exemption on former reserves, which puts us in a bind because we have some people outside the former reserves who will be taxed, and those within the former reserves who won’t be taxed as far as personal income tax. It causes a divide, and they are not willing to make any concessions on that with us. They are not willing to meet us in the middle. The only way they will do so is if we begin to work toward re-implementing the taxation that they put on us.
There is a lot of stuff that causes a lot of problems because they don’t consult with us first.
Senator Martin: There is this lack of consultation, which seems to come up again and again.
I have a question for Grand Chief Gull-Masty. I think in April 2023, you expressed concerns that many First Nations had not been sufficiently involved in consultations. Could you elaborate on this lack of consultation? Did the government give any explanation as to why there has been such a lack of consultation? Do you feel you have been adequately consulted?
Ms. Gull-Masty: I think that very often the challenge is that those bodies — those national organizations — are selected for consultation, and the intricacies, such as nations like mine, do not become part of that dialogue because there are various bodies that represent modern land claims groups across Canada.
I think there has to be a wider casting of the net in ensuring that you’re bringing a variety of members forward to be part of consultations and dialogue. There has to be an open mechanism too, because much like the groups before me, there are, from time to time, very valid positions that come from outside groups that need to be presented. I do respect the fact that we have service providers who were part of the previous panel. I want to say that the services or concerns that they have are often based on very legitimate infield awareness and understanding of what’s going on as a front-line service.
Although I am seeing challenges with consultation, for me, the harder thing is the dispute mechanism itself. If you do not feel consulted, and if you do not feel that you’ve had the capacity to be part of the dialogue, then where do you lodge that complaint? I’m very critical of the dispute mechanism that’s in place right now. You do not have the opportunity to provide a formal request to be part of the consultation body, if that arises.
There is clearly a mechanism that is missing there. As part of the action plan, I think this is something that needs to be addressed. For the work that is carried out as part of this process, there needs to be an extremely high level of accountability, and that often means not just having an Indigenous mechanism in place to evaluate the implementation, but also challenging ourselves as a country in showcasing — in the international forum — what it is that Canada is doing with UNDRIP.
I believe that accountability really is a willingness to undertake responsibility for your actions, and that doesn’t just mean being accountable to Canadians; that means showcasing as a country — in the international forum — what you’ve been doing for Indigenous peoples, not solely as a presentation by a single government representative, but in collaboration with Indigenous peoples.
If you want to share the word of the work that you’re doing with and for Indigenous peoples, you cannot be the sole messenger. You need to have them by your side as an ally, as an advocate and as a co-presenter.
Senator Martin: I think those are very important comments and recommendations for us to look at as a committee. The dispute mechanism will be very important to really have a higher level of accountability. Thank you so much for your insights and recommendations.
The Deputy Chair: Mr. Morven, you wanted to make an additional comment. Go ahead, please, sir.
Mr. Morven: Just to clarify, under the Nisga’a Treaty, under the fiscal relations chapter, the Nisga’a Nation — after 13 years — had to implement a taxation regime within the nation, where we taxed our individual citizens regarding the personal income tax. We were able to get revenues from that, and we were also able to implement property tax after 13 years. After eight years, we implemented the sales tax. When that announcement was made, the people put pressure on us. As a nation, we were getting comfortable with it until that announcement was made under section 87, where the tax exemption wouldn’t be taken away to negotiate treaties.
To be fair, they said those who are already in the treaty were going to be given the choice to go back to the tax exemption, and they didn’t consult with us on that first before they made that decision. Right away, our citizens were asking, so we had to make the decision — as a government — to go back to the tax exemption under section 37. Our communities had grown under the treaty. There are no reserves under the treaty, so now we have to implement it under their rules for former reserves, and they are not allowing us to expand to where we are today.
There are some people in communities — because the communities grew — who are past the former reserve boundaries, where they will be taxed and others won’t be. We’re working with the Department of Finance Canada right now to work on that. Those are things where Canada fails to always consult with the Nisga’a Nation before they make decisions.
Senator Martin: That’s a good example to illustrate. Thank you.
The Deputy Chair: Thank you, witnesses. We have a fairly hard stop in just a few minutes, but I will ask one question to both witnesses, and it’s on dispute resolution because there’s the possibility of having an Indigenous human rights commission and a tribunal. We know that the national council for reconciliation — Bill C-29 — will come into effect, but there is another thing inside this United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan; it’s Measure 19. I’ll go quickly, because I’ve asked other witnesses about this same idea. I’m sure that it will have to be a written response because of the timeline here. Measure 19 proposes:
. . . an independent Indigenous rights monitoring, oversight, recourse or remedy mechanism or mechanisms to provide Indigenous peoples with access to and prompt decision through just and fair procedures for dispute and conflict resolution and effective remedies for infringements/violations of their individual and collective rights.
It could include intrusions on your land. It goes on, but it’s a mechanism that, I would say, has a lot of teeth to it. In your view, would you support that kind of a structure to get something more immediate when you have acute situations where governments and others are transgressing on your lands and your only resort is perhaps a court case for a couple of decades?
I don’t know if you have any comment on that item right now, but if you have a written comment later, that would be fine. I see Mr. Morven would like to make a quick comment.
Mr. Morven: In our treaty, we have that mechanism for disputes with the Government of Canada and British Columbia, and there are steps we have to take if we can’t come to any conclusion, where we go to the courts.
It’s not a quick process, but we used it just the last couple of years, and it seems to be effective. It’s slow, but you have to be patient, and sometimes our citizens aren’t as patient as us, and they put more pressure on us. They ask us why we don’t take the government to court on certain issues. I said, “There’s a dispute resolution process. Right now, we’re in step two of the process, and we’re starting to gain some ground.”
It proved to be effective for us, yes.
The Deputy Chair: That’s good to know.
If you have any points to add, please put it in writing to the clerk — and I’ll just give Grand Chief Gull-Masty a chance to quickly talk about her experience or her observation.
Ms. Gull-Masty: As a nation that has launched numerous court cases, I think that it would have been very much welcome to have a body as a representation of my peers to advocate proper communication and dialogue before the dispute reached a point of legal recourse.
Yes, I would support this position. Sometimes, a dialogue amongst a smaller group with very clear perimeters can resolve dispute quicker than legal recourse. We have a number of court cases that span 20 years, and it led to a lot of frustrations — like my colleague has said here — of people who have lived a lifetime and haven’t seen resolution. For this mechanism, if it were created, I will be submitting something to the clerk advocating for the creation of that.
The Deputy Chair: Okay, thank you very much.
Yes, sir, one more, go ahead.
Mr. Morven: Dispute resolution always has to be section 19. It’s the section in our treaty.
The Deputy Chair: Thank you, witnesses. This has been very helpful. I want to thank all the witnesses and the senators for engaging in this discussion tonight. Thank you very much.
The time for this panel is now complete. I wish to again say thank you. If you wish to make any subsequent submissions, please submit them to the clerk by email. That brings us to the end of the meeting. Thank you very much.
(The committee adjourned.)