THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Wednesday, May 8, 2024
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 6:52 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 Métis peoples; and, in camera, to examine the federal government’s constitutional, treaty, political and legal responsibilities to First Nations, Inuit and Métis peoples and any other subject concerning Indigenous Peoples.
Senator Brian Francis (Chair) in the chair.
[English]
The Chair: Honourable senators, before we begin, I would like to remind all senators and other meeting participants of the following important preventative measures.
To prevent disruptive and potentially harmful audio feedback incidents during our meeting that could cause injuries, we remind all in-person participants to keep earpieces away from all microphones at all times.
As indicated in the communiqué from the Speaker to all senators on Monday, April 29, the following measures have been taken to help prevent audio feedback incidents. All earpieces have been replaced by a model that greatly reduces the probability of audio feedback. The new earpieces are black in colour, whereas the former earpieces were grey. Please only use a black approved earpiece.
By default, all unused earpieces will be unplugged at the start of a meeting. When you are not using your earpiece, please place it face down on the middle of the round sticker that you see in front of you on the table where indicated. Please consult the card on the table for guidelines to prevent audio feedback incidents. Please ensure that are you seated in a manner that increases the distance between microphones. Participants must only plug in their earpieces to the microphone console located directly in front of them. These measures are in place so that we can conduct our business without interruption and protect the health and safety of all participants, including the interpreters. Thank you, all, for your cooperation.
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 am Mi’kmaw Senator Brian Francis, from Epekwitk, also known as Prince Edward Island, and I am the Chair of the Committee on Indigenous Peoples. I will now ask committee members in attendance to introduce themselves by stating their names and province or territory.
Senator Arnot: My name is David Arnot. I’m from Saskatchewan, Treaty 6 territory.
Senator Martin: Good evening. Yonah Martin from British Columbia.
[Translation]
Senator Audette: Michèle Audette from Quebec [Innu-aimun spoken].
[English]
Senator Coyle: Mary Coyle, Antigonish, Nova Scotia, Mi’kma’ki.
Senator Tannas: Scott Tannas, Alberta.
Senator Sorensen: Karen Sorensen, Alberta, Treaty 7 territory.
Senator Boniface: Gwen Boniface, Ontario.
Senator White: Judy White [Indigenous language spoken], better known as the Mi’kmaq ancestral homelands of Newfoundland Labrador.
Senator Greenwood: Margo Greenwood, British Columbia, Treaty 6 territory.
Senator Prosper: Senator P. J. Prosper, Nova Scotia, Mi’kma’ki.
The Chair: Today, we will continue 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 the topic.
With that, I would like to introduce our witnesses. From the Nishnawbe Aski Nation, we have Natalie Binguis, Director of Justice Research and Policy, and Michael Sherry, Legal Counsel. Thank you both for joining us today.
I would also like to acknowledge that Deputy Grand Chief Anna Betty Achneepineskum was scheduled to appear this evening as well but due to technical difficulties was not able to do so. Ms. Binguis and Mr. Sherry will speak on her behalf.
Our witnesses will provide opening remarks of approximately five minutes, which will be followed by a question-and-answer session with the senators. I will now invite Ms. Binguis to give her opening remarks.
Natalie Binguis, Director of Justice Research and Policy, Nishnawbe Aski Nation: Chi meegwetch, chair. Thank you for advising that Deputy Grand chief Anna Betty Achneepineskum is unable to join us, so I will be reading her speaking notes:
Boozhoo, wachiye and good evening. My name is Anna Betty Achneepineskum, a Deputy Grand Chief from Nishnawbe Aski Nation, also known as NAN.
I want to begin by thanking the Standing Senate Committee for inviting NAN to present to the committee on its study of the implementation of the United Nations Declaration of Indigenous Peoples Act, 2021.
We also state that the people of NAN are a sovereign people with sovereign and inherent rights by virtue of being the first peoples on their lands. It is from that basis that we approach UNDRIP and the legislation.
NAN chiefs supported the ratification of the UNDRIP in Canada since it was adopted by the United Nations General Assembly in 2007. They have called on Canada for active implementation measures in their territories. It is in this spirit that NAN participated in the engagement conducted by the Government of Canada for the Action Plan.
NAN prepared an extensive response to the government’s Action Plan. We are here to share information that we strongly encourage the committee to include as part of its report and recommendations to the Government of Canada.
Natalie Binguis, Director of Justice Research and Policy, will tell you about NAN’s submission to the committee.
I am here this evening on the traditional lands of Fort William First Nation from Thunder Bay, Ontario. I am proud and honoured to speak to all of you today. I am from Lac Seul First Nation, one of the NAN member communities.
NAN welcomes this invitation to present to the Standing Senate Committee on Indigenous Peoples. Our presentation will focus on our submission materials provided before this evening’s presentation.
NAN is composed of 49 First Nations communities, most of which are signatories to Treaty No. 9 and the Ontario portion of Treaty No. 5. Treaty No. 9 is unique among the historical treaties because it is an agreement signed by First Nations with Canada and Ontario. Our 49 First Nations own and control a vast and contiguous territory in Northern Ontario. Our citizens are the rights holders and speak Ojibway, Oji-Cree and Cree, and they reside on and off reserve.
Since 2010, NAN chiefs have mandated NAN to implement the United Nations Declaration on the Rights of Indigenous Peoples, otherwise known as UNDRIP. Our chiefs understood then how important having access to information on the UN Declaration would be. Now that we have this act and the Action Plan, education and dialogue are integral to implementing UNDRIP in NAN territory. The NAN chiefs have also called for Free, Prior and Informed Consent, or FPIC, since 2010, and this was affirmed again at the 2022 NAN engagement on UNDRIP. For time’s sake, I will switch my presentation to focus the remaining time on the questions.
NAN submits to the Standing Senate Committee on Indigenous Peoples that further study is required on Free, Prior and Informed Consent. We need to have information on anything that impacts us. We need to be informed so that we can reflect through our own processes, protocols and decision-making, and if it is about our lands, territories or resources, consent is required.
Two core substantive rights in UNDRIP are self-determination and the protection of First Nation lands and resources highlighted in articles 26 and 32. FPIC is guaranteed in numerous provisions of the UN Declaration and is central to the interpretation. Transformation and generational impacts, whole of government efforts and taking all measures necessary will be required to implement the UN Declaration affirmed in Canada’s legislation, so investments for beyond the 2023-28 Action Plan need to be considered now.
So far, Canada has fallen short of its article 19 commitments from our view, with limited investment from Budget 2021 where we are at right now.
Canada has resources for whole-of-government efforts; NAN does not. Article 39 speaks to having access to technical and financial assistance from states. We submit this article be considered in the context of participation in decision-making and Indigenous institutions under the shared priorities section of the Action Plan and suggest for further study numbers 67 to 73.
To implement and achieve the objectives of the legislation and the ongoing section 5 activities of aligning federal laws to the declaration, the legislative policy and program reform needed will require NAN rights holder voices every step of the way.
NAN also suggests Action Plan items 7-10 under the “First Nations” chapter and heading “Civil and Political Affairs.” Action Plan items 7-9 discuss the Indian Act, membership reform and self-determination, let alone repealing the Indian Act because it will never be fully aligned with the UN declaration, so we will need to inform our NAN communities and citizens. These critical conversations must happen for NAN First Nations in Canada at the nation-to-nation level, as each community will have their own perspectives in decision-making.
Finally, for Action Plan item no. 10, NAN has called for policing as an essential service since 2010. Limited funding prevented us from contemplating these very important questions, so we need to continue to engage with our police service organizations and communities on this issue.
We want to say chi-miigwetch for your time and hearing the Nishnawbe Aski Nation’s view for further study by the Standing Senate Committee on Indigenous Peoples study on the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act, 2021. Thank you.
The Chair: Thank you, Ms. Binguis. We will now open the floor to questions from senators.
Senator Arnot: Thank you, Ms. Binguis, for your presentation.
I have a question concerning policing. You are talking about policing in the NAN nations. You must have some views on the Thunder Bay Police Service and some of the things that have gone wrong continuously for quite some time. What steps would NAN see in terms of building a trust relationship between the NAN communities and the law enforcement agencies in Thunder Bay? How do you see UNDRIP assisting that process? Secondly, and perhaps more importantly, what are your plans for your own policing services to be established in the NAN territories?
Ms. Binguis: Thank you for your question.
UNDRIP does open the doors for meaningful conversation between organizations. It certainly allows us to provide what our views are and to hear the views of others. We see it as an opportunity to think about ways we can build relationships. We haven’t had the chance to think about Thunder Bay Police in terms of how UNDRIP would relate to it.
We do have a Nishnawbe Aski Nation police service that polices 34 of our 49 First Nation communities, and we have three other police service organizations. We have Lac Seul First Nation Police Service, Anishinabek Police Services and the OPP which service our communities as well. This is a conversation that we know we’ll need to have with all of our service organizations to get feedback on what their perspectives are, as policing is an essential legislation.
I will leave it there. I do not have the information in front of me in terms of providing a more comprehensive response. Our police service organizations would need to be part of this response as well.
Senator Arnot: I am happy with that answer. Thank you.
Senator Boniface: I will ask about the policing side since you mentioned it as well. Is the Nishnawbe Aski Police Service, or NAPS, still part of a tripartite agreement? Is that correct?
Ms. Binguis: One of the unique features of NAPS is that they are working to be constituted under the Community Safety and Policing Act here in Ontario. Again, I would prefer to have them answer or respond to those questions.
Senator Boniface: I was trying to ask it in context of how UNDRIP may assist you, and not specific to — I know your agency quite well.
Ms. Binguis: Perfect.
Senator Boniface: I am thinking of ways in which UNDRIP may assist, and the piece I didn’t know was whether the Province of Ontario had adopted an UNDRIP approach as well. I am thinking in terms of your negotiation process. Are you aware of whether they have or not?
Ms. Binguis: Not at this time, no. There hasn’t been any messaging available on that issue. I cannot answer. I apologize.
Senator Boniface: No, you do not need to apologize. We are looking for ways in which we may see the UNDRIP advantage Nishnawbe Aski. I’m quite familiar with the policing and the essential service requirements that have been long in the discussion and ways in which this may help propel that. Thank you. Thank you for raising it in that context. It is important.
Ms. Binguis: Thank you, chi-miigwetch.
Senator Sorensen: Thank you to our witnesses for being here this evening.
Northern Ontario First Nations are regularly impacted by extreme weather events, such as forest fires and flooding, which often require expensive evacuations of entire communities. I am aware that, in the past, the federal government has not been particularly prompt in providing what is needed in the immediate. I will add a second part. Northern and remote Indigenous communities, based on your comments and our knowledge, of course, struggle with many things, but another is shortage of housing and other infrastructure and serious investment to close those gaps. Do you believe that the Action Plan reflects at least the need for physical and social infrastructure in the northern First Nations and better collaboration on responding to emergency situations?
Ms. Binguis: That is a great question, thank you.
The Action Plan does provide an opportunity for sectors beyond justice, which I am working in currently. We do think about this work from a social determinants of health perspective. We are aware of the sectors and how we need to come together both for coordination and certainly communications. We need to think of ways that we can — I like to refer to it as holding hands, so thinking about ways that we can work together.
Our forest fire season is always something that is worrisome. Certainly, the impact of El Nino over this last winter does have us thinking about that. We do have our colleagues here at NAN who respond to emergency management, and they think about housing and infrastructure. These are conversations that we know we’ll need to do internally as well.
I do have my colleague, Mike Sherry, who may be able to also think about the Action Plan with us if he can provide some response to that. Thank you.
Michael Sherry, Legal Counsel, Nishnawbe Aski Nation: Sure. Thanks, Natalie.
Without citing chapter and verse, there are many provisions in UNDRIP that deal with the issue that has been raised by the senator, and the general direction would be that the federal government should do more than they’ve done in the past in terms of emergencies and related situations.
This relates to a general problem that we have with the Action Plan in that it doesn’t really seem to transform what the federal government has been doing in the past. It largely describes things that they have been doing and are doing for various reasons that probably are not necessarily connected to UNDRIP, and they’ve basically created a list of things that they are doing. I think that this is an example of a situation where, in the Action Plan, there are some good things in it that are progressive and supported by NAN First Nations, but it hasn’t made that leap into transformative change, which UNDRIP calls for. I think the particular area that the senator has raised is just an example of that.
Senator Martin: Thank you to our witnesses this evening.
I’m just on your website, and I’m looking at the list of nations that are part of NAN. I heard you say in your opening remarks, Ms. Binguis, that further consultation is needed. I could only imagine the complexity of how you would do this, and there is that duty to consult. Would you further expand on what you meant by “further consultation is needed”? How can the federal government fulfill its duty to consult in a meaningful way? What should they be doing? In your opening remarks, you mentioned that further consultation is needed.
Ms. Binguis: The opportunity to continue our work is certainly there. We know that we will require financial resources in order to do that. Unfortunately, the resources that were made available from the proposal stage to where we’re at have been limited, so they have limited the participation of our communities as well.
The engagement that we did do with our NAN chiefs was done on one day, and we know that conversations that talk about Indigenous rights or human rights should certainly have the time and the space in order for us to think about these things through our own processes and our own decision making. We haven’t had those opportunities yet.
On the file itself, we do the best we can, but we’re a very small department. We know the education, resources and awareness that we need to bring to our community members so that they’re aware of what their rights are through UNDRIP and the act and the ways that we can work with this opportunity. There are more conversations that we know that we need to have, and, unfortunately, we’ve heard feedback from our community members that they don’t know what it is. We know that we need to distinguish what the UN declaration is on top of also saying that Canada has ratified this legislation and now has the Action Plan. That will require intensive educational resources made available to our citizens, and that’s something we would look to as a priority.
Senator Martin: Okay. That was my second question, because you said education and dialogue are integral to this whole process. That need is not currently met. Is it matter of funding? I guess there would be websites and such, but what more are you looking for or needing to do in that regard?
Ms. Binguis: What we also need is to have the UNDRIP and the materials and our information translated into our three languages — Ojibway, Oji-Cree and Cree — so that there is that meaningful participation through their own languages and their own thought processes. That is currently unavailable. With the resources that were made available, we weren’t able to do that. That’s just one part of what we know we need to do in order to continue this dialogue with our chiefs.
The chiefs have made it very clear in NAN Resolution 10/65 that there needs to be an education and awareness campaign that is available at the community level. For our part, what we’ve done is have conversations in Thunder Bay, but that isn’t part of what we need to do, which is go directly to communities and start having the conversations there. Funding in terms of resources for travel and also anything that we can do to provide that education for our citizens is what we’re thinking about.
Senator Martin: Thank you very much. That’s helpful.
The Chair: Last October, AFN Interim National Chief Joanna Bernard and Manitoba AFN Regional Chief Cindy Woodhouse were urging a public apology from Prime Minister Trudeau and the Government of Canada regarding historical and systemic injustices in the First Nations Child and Family Services system and the narrow application of Jordan’s Principle. The Nishnawbe Aski Nation supported this call. Would you share with the committee why this apology is needed and what else the federal government can do to finally ensure there is no discrimination in the provision of services, products and supports for First Nations children, youth and their families?
Ms. Binguis: I’m sorry, I didn’t prepare for that question. I’ll do my best to provide an answer.
The Chair: There is certainly no pressure. If you want to submit the answer in writing, feel free. If you can get it to us in writing, that’s fine as well.
Ms. Binguis: I appreciate that. Thank you. We will do that right away.
The Chair: Thank you.
Senator Coyle: Thank you so much to our witnesses, Ms. Binguis and Mr. Sherry.
If I heard you correctly, Mr. Sherry, you said something along the lines of you saw some of the existing or past programming in the Action Plan, and it really wasn’t anything new. We’ve heard that from others. What you didn’t see was an opportunity in the Action Plan for transformative change. I’m curious about transformative change.
The Nishnawbe Aski Nation is situated in a very strategic location right now for Canada’s green energy future. Your communities are right there in the Ring of Fire. Critical minerals are there.
Do either or both of you see opportunity for your communities and for the Nishnawbe Aski Nation collectively that you didn’t see before now that UNDRIP is in place in how and if UNDRIP might be able to assist you in seizing these opportunities in a way that really helps with your own self-determination and the economic well-being of your communities?
Mr. Sherry: If the question is for me, senator, thank you.
If you look at the UNDRIP itself, there is tremendous potential for transformative change because there are so many articles that are so positive across the board in practically every program and service area. That’s one of the main reasons why the Nishnawbe Aski Nation has invested so much time, money and energy into it, because the First Nations see that great potential, but it’s a long-term thing.
Obviously, the passage of federal legislation in 2021 was a good thing. We place a lot importance in particular on section 5. We view that as a legal obligation of the federal government. I’m not going to get the words exactly right, but basically there’s a legal obligation on the part of the federal government to take all necessary measures to ensure that federal laws, regulations and policies are consistent with UNDRIP. That’s a big deal. We view that as a federal obligation that, regardless of the Action Plan, is something that justiciable and is an obligation.
If I can get legal for a second, and I guess that’s why I’m here, there is a recent Supreme Court of Canada decision, the reference on Child and Family Services, which is February 9, just a couple of months ago. It says some very profound and positive things about UNDRIP. It said a couple of things. It said that UNDRIP has now been incorporated into the positive law of Canada. That’s everyday law. It also said that the UNDRIP is a framework or road map for reconciliation. That’s a big deal, because the courts have said for 30 years that reconciliation is the main underlying principle of the relations between First Nations and Canada.
We see tremendous potential in UNDRIP, and the Supreme Court has backed us and all First Nations up on that as recently as two months ago. Things can change, but in the current situation, we see a disconnect with a couple of things. One is the Action Plan, as you indicated, senator. There is some good stuff in there, but a lot of it is basically a litany of things that the federal government was doing anyway for all kinds of reasons. There is some progressive material in there, but we view the Action Plan as quite modest and not transformative.
As an example, without going on for too long, the federal focus on consultation and maybe accommodation in relation to lands and resources, that’s the standard that’s been followed for at least a couple of decades. As Natalie indicated, the UNDRIP says clearly in many provisions that the standard is free, prior and informed consent, or FPIC, or a veto in certain situations. The Action Plan does not say that, so there was a refusal to take that transformative step. It’s disappointing, but we view this as a long-term exercise.
If I could cite one more legal example that highlights this problem, it is that in the Budget Implementation Act, one of the acts that’s being changed is the Impact Assessment Act, environmental assessment. NAN did meet virtually with federal officials about the impact assessment, because we knew that was going to be amended because of the Supreme Court of Canada reference from two or three years ago, and we urged them to take the opportunity to beef up or juice up the Impact Assessment Act based on UNDRIP. Essentially they have not done that. We’ve looked at the amendments in the omnibus bill, and there are a couple of references to section 35 but nothing really in relation to UNDRIP. We view that as a significant lost opportunity that’s before Parliament today.
Thank you.
Senator Coyle: Thank you.
Senator Tannas: Thanks to our witnesses for being here.
I want to follow along some of the same lines but maybe from a different angle, especially free, prior and informed consent. For obvious reasons, your communities will have their consent sought often in the next 25 years, and my question is about the informed part of consent and the resourcing of that and who is actually going to help provide the communities with the resources, not just the financial resources but the actual work that needs to be done, independent work that needs to be done so that the communities can make decisions not based on what the best salesman tells them but the consultants that are working specifically for the nation and engaging with whoever the project proponents are.
I have two questions. First, has NAN and the communities that are members talked about NAN as a common resource for this? Has there been a decision, or is there a direction, rather than leaving all 40 communities to figure this out themselves, that this is one of the things that NAN can do and should do in terms of providing a common service and common expertise? Second, if that’s the case, how much planning has been done from your side? Often I worry that sometimes the communities are waiting to react because that’s been the way it has always been.
It has been interesting over my time on the committee — I am coming up on 12 years — to see that some of the more successful initiatives have been driven the other way. They’ve been driven by the communities or groups of communities that say, “This is what we want to get done,” and they’re here advocating for that way of doing things. I’m talking about the First Nations Tax Commission and the First Nations Financial Management Board. There are a number of them where it has been an initiative from the ground up.
Can you talk about that with respect to FPIC? This certainly was the biggest issue for legislators in the whole package of UNDRIP. It is the thing that has to go well and be done right in order to have faith — for the communities to have faith and for industries to have faith — that there is a process there that will work and get to whatever the truth needs to be to make the right decision for everybody.
I’ll leave it there. Can you give me any kind of colour on what your thoughts are about collective development of the resources, number one, and, number two, what planning you’ve done?
Ms. Binguis: Thank you for that, senator. I’ll begin the response, but I will also ask Mike to jump in as well.
We see this as the opportunity to implement UNDRIP in NAN territory. We have had the mandate to do so since 2010; however, the resources haven’t been available. We know that our 49 First Nations will need to have this conversation within their own communities respectively so that they identify what their priorities are and what this would look like. They are the subject matter experts in terms of they know what will work for them and they know what solutions they need. It certainly has to come from them in terms of what those needs are and what those priorities are. We see UNDRIP as the opportunity where there is mutual benefit if there are projects that are being undertaken in our communities.
I’m going to leave my response there and ask Mike to join. Thank you.
Mr. Sherry: Thanks, Natalie.
Yes, in certain situations, NAN can be a common resource. In fact, that’s what’s happening now, even this evening, is that NAN has facilitated participation in the process leading to the Action Plan. There are limitations on that because, as Natalie indicated, the First Nations are the subject experts, yes, but as well, they’re the rights holders. NAN is a corporation, legally speaking, so the rights holder in terms of treaty rights and other rights such as constitutional rights are the First Nations.
When it comes right down to it in terms of participating in a project and reaching the point of consenting to a resource project, in that example, FPIC, it’s really up to the First Nations affected. For example, earlier there was a mention of the Ring of Fire. That’s a situation where NAN could not give consent to that. That’s up to the First Nations that are directly affected by it, but NAN can facilitate and assist and provide information, especially in the policy area like UNDRIP, so that’s an important distinction. It’s really up to the First Nations in the end.
Of course, it would be easier for the federal government to be able to just get the consent of one organization, but that’s not the reality. In terms of rights that are discussed in UNDRIP, it has to be the individual First Nations. It’s a big job, but that’s what’s called for, and that’s the right thing to do.
Senator Tannas: I totally agree, Mr. Sherry. I wasn’t trying to suggest that NAN would be the approving body, but why would we want more than 40 nations to recreate the wheel and hire their own individual people to create that process? There must be some common things that can be delivered better by NAN. That’s why NAN exists, right, is to help with things that are better done collectively than they are. I’ll leave it there.
I had one other thing I just wanted to make a comment on. Mr. Sherry, you said that FPIC is a veto, and I find that concerning. If we go back and look at the Senate records, which — testimony was relied upon to prove it, and it was said dozens of times that FPIC is not a veto. I’m interested to hear that that’s now the position, but I am a little bit concerned about it. I guess we’ll see how it plays out. Thank you.
Mr. Sherry: If I could respond briefly, chairperson.
I can’t speak to the witness testimony of dozens of people from several years ago, but free, prior and informed consent, it means what it says. That’s the language. The Supreme Court has said that that is now the positive law of Canada. That’s just from two months ago, and that’s the Supreme Court of Canada.
When you get into FPIC, NAN has done some work on this on behalf of the First Nations, and it’s a complex area. There is a bit of a spectrum. FPIC is obviously relevant in the significant things that have a fundamental effect on First Nations rights, and that’s where the veto applies. At the other end of the spectrum, for routine administrative matters, things that don’t have a fundamental effect, a different process should apply at that point. But on the big things, FPIC is, in our view, the correct standard.
When we say “veto,” that doesn’t mean that things don’t happen. I think we have made it clear in our material that the First Nations, pursuant to the treaties, are in favour of mutually beneficial development. That kind of development will happen, but First Nations have to participate as equal partners and, in the end, have to consent to it. But they are pro-development in the right circumstances.
Senator Tannas: Absolutely. A good exchange. Thank you, sir.
Senator Greenwood: Thank you to the witnesses for being here with us this evening.
A number of my questions have been asked already, so I will follow up with a couple of things. I have an understanding of free, prior and informed consent. My question may be more around engagement.
You already spoke about some things that you would like to see happen for communities, such as more education so that people can make good decisions. When we are talking about 40‑plus nations, we will be thinking about 40 unique processes because each knows their community in a manner they are familiar with. Ultimately, through that engagement, we can get to informed decision making, if you will. I would ask that you talk a little bit about some of those engagement strategies. I know you have already given us one about education, and that is important. Of course, these kinds of engagements take fiscal resources; I understand that as well. Maybe if you want to talk a little bit more about that, if there is more you want to add, I would be interested in hearing that.
The second part of the question is, once we get to a place where we have made a decision, all of it relative to UNDRIP, who can enforce that? Whatever decisions and agreements are made, who actually enforces that? I know a lot of the front-end pieces of this are driving towards self-determination and recognition of that. What are the priorities that have to happen in order to see some of the results that you are seeking for community members and families? I am thinking of children and families and what needs to be in place at a structural or systemic level in order to enable and yet through the engagement process will drive those structural priorities, I’m assuming. Could you please elaborate on any of those pieces, if I have understood you correctly?
Ms. Binguis: Thank you, senator.
In terms of what we have projected and the work we would like to continue to do, you are correct that it is beyond the education and resources. It is to have those conversations and hear from our communities and our individual citizens about what that means to them. As Mike Sherry has said, those are the rights holders, and we understand that.
Many times we think about — at least for our department — things from the beginning of life to the end of life and what that pathway or life course looks like. Our community members are always thinking about what they need, and usually it is what is not available — for instance, a family that is not able to seek the treatment they need because of the NIHB process, the Non‑Insured Health Benefit. We know that that impacts our members daily. Fire suppression and fire equipment that is not there when it is needed is part of what we see as UNDRIP as well.
We would need to be informed by their priorities and have that conversation with them. It is up to the 49 communities what those priorities would be. We can facilitate and coordinate the conversation, and then it would be for them to determine that. It is about resources that we don’t have currently. Our department is small. We have four staff, myself included, so five, and we are doing our best to try and do what we can with the resources we do have currently.
As Mike said, this is a very complex conversation. We know it can go in any which way. UNDRIP is everything. I saw you hold up that little book. It speaks to everything. It speaks to people’s health, their education and all things that are important to them. We would need to hear from them, and that would inform next steps for us. We would need to hear from their perspectives, and then they would lead the direction on that.
Unfortunately, without the resources that we require, we are limited. We do what we can. If the opportunity arises, we do that. We have focused our information in trying to make that available, but there is the ongoing analysis that we need to do. The conversations from community members and our chiefs will inform those next steps for us.
Mike, do you have anything to add?
Mr. Sherry: A couple of things, Nathalie.
Yes, the ongoing analysis is an important point. I mentioned the Supreme Court decision. Something comes along like the amendments, the impact assessment, and these are things all related to UNDRIP. It is quite an enterprise to keep up with these things, so there is that.
The second thing is the senator asked about enforcement. Obviously, the best way to enforce UNDRIP and the UNDRIP Act is through mutual negotiations and discussions with the federal government, third parties and the province as well. They don’t have UNDRIP legislation. Their position is a little bit unclear. Yes, the best way is through negotiations and agreements and all of that.
The worst-case scenario if things break down in the future is then people go to court. There is federal legislation. I have already indicated that our view is that section 5 is justiciable, meaning that it is a federal obligation that can be taken to court. In the worst-case scenario, it can be enforced through court, but that is obviously not the preferred option.
Senator Greenwood: Thank you.
Senator Prosper: Thank you to the witnesses for being here and providing your testimony.
I appreciate the perspectives you both shared. It seems to make a lot of sense in terms of looking at the capacity issue front and centre and allowing for a process to emerge and take place with the appropriate people, the rights holders and people who can provide direct input, the people from the community, community members. It makes a lot of sense.
The thing that really intrigues me is, Mr. Sherry, that you mentioned the current activities to date, since the Action Plan, have been really nothing new. They are essentially doing what they have been doing all along. There doesn’t appear, and correct me on this, to be anything new in the sense of this taking off from the Action Plan itself. Is that the case? Is that what I am hearing? Other than business as usual, nothing has really been brought forward with respect to your communities and the Action Plan from any federal department for that matter?
Mr. Sherry: Yes. Unfortunately, that is correct. It is obviously a bit concerning at different levels.
The Action Plan is supposed to be locked in for five years. Yes, when you go through the Action Plan carefully, there are many things in there which I’ve said that are progressive and supported by First Nations. By and large, there are things that were happening anyway. There are so many examples. Bill C-38, which is some amendments to the Indian Act relating to status and membership, that resulted from litigation. There is a liability issue. Parliament has done that for several decades, patches on the status of membership provisions.
Another example would be the additions to reserve policy which is going through a reform process. It is mentioned in the Action Plan, but it is something that was going on anyway. The feds have reformed that several times over the past decades. There are numerous examples of that, where it’s mostly a litany of things that were happening for various reasons. The disappointing aspect is there was a lost opportunity to do something transformative and different.
Another example at a higher level is the federal focus on consultation and accommodation. That is the current domestic legal model which has many problems and has been heavily criticized by First Nations. UNDRIP says FPIC, not consultation and accommodation, and yet there is a refusal to go there. That is all quite disappointing, especially since that Action Plan is locked in for five years.
Another specific example of the Impact Assessment Act is where because of the Supreme Court reference from two or three years ago from Alberta that basically upset the Impact Assessment Act, it had to be reformed. Given the recent Supreme Court decision on child and family services, and given the UNDRIP Act, when we met virtually with federal officials, we said that this is a golden opportunity to inject UNDRIP into this piece of legislation which directly affects lands and the Nishnawbe Aski First Nations, but instead, looking at the bill attached to the omnibus budget bill, they are very narrow changes that address the concerns of the Supreme Court but basically ignore the opportunity to do something transformative. The impact assessment would have been the perfect vehicle for a real FPIC model. It is federal jurisdiction. It affects First Nations. It was a golden opportunity. It is before Parliament right now, and the opportunity is not being taken.
Of course, there is the separate concern with the Action Plan. It is really a litany of things that the feds were doing anyway.
Senator Prosper: Mr. Sherry, thank you for providing that narrative.
What I get from that is that the proof should be in the pudding. Here are existing legislative initiatives. You have an Action Plan. You have an act that is a legal obligation to implement UNDRIP. There is no correlation there. It sort of suggests the question, “What is the real intent of government?”
By way of follow-up, can you tell me, have they ever come forward and uttered the words “Action Plan” and indicated their willingness to work on specific initiatives in accordance with the act and the Action Plan itself? Did those words ever come from their mouths when they met with you?
Ms. Binguis: Thank you, senator. I will answer the first portion.
There was an invitation sent to us via email in February, and that was to participate in the annual progress report. Unfortunately, due to our own limitations here in our department, we were not able to either respond to that or be a part of that. That is because our department relies on annual project-based funding. We do have other files that we do need to pay attention to as well. It isn’t as a result of not wanting to do it, it is just that we can’t. We don’t have the time and the human resources for that. Thank you.
Mike?
Mr. Sherry: Of course, we were invited to participate in the process that led to the Action Plan, but there are funding problems. As Natalie indicated, we did the best we could. We held a session in Thunder Bay. In fact, NAN produced a lengthy report with many recommendations, which has been submitted as a part of our materials. I would certainly urge the senators to read that. It is an excellent report. We did the best we could to affect the Action Plan process. In the end, there was a significant level of disappointment because there was no reference to the Nishnawbe Aski Nation in the report whatsoever, even though, as a couple of senators have mentioned, NAN is significant. It’s a large area with rich resources and a large population. We put in that major report, but there was no reference to Nishnawbe Aski Nation, which was disappointing.
In terms of follow-up, we have had discussions with officials, but there is nothing in particular in the Action Plan, as I said, that transforms things. It is more of a business-as-usual model. It is difficult to think of an example where you could go to a particular paragraph in the Action Plan and say, “This changes everything. Let’s work on this together.” I would be hard-pressed to think of a paragraph that has that kind of effect.
Senator Prosper: Thank you.
The Chair: The time for this panel is now complete. I thank our witnesses for joining us this evening. If you wish to make any subsequent submissions, please submit them by email to the clerk within seven days.
We will now continue in camera with a brief discussion.
(The committee continued in camera.)
(The committee resumed in public.)
The Chair: Honourable senators, is it agreed that the budget application for the 2024 edition of the Voices of Youth Indigenous Leaders event for the fiscal year ending March 31, 2025, be approved for submission to the Standing Committee on Internal Economy, Budgets and Administration?
Hon. Senators: Agreed.
The Chair: The budget will now be submitted to the Standing Committee on Internal Economy, Budgets and Administration to be reviewed by the subcommittee SEBS at their next meeting.
(The committee adjourned.)