THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Wednesday, May 22, 2024
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 6:50 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 consider a draft agenda (future business).
Senator Brian Francis (Chair) in the chair.
[English]
The Chair: Honourable senators, before we begin, I ask all senators and other in-person participants to consult the cards on the table for guidelines to prevent audio feedback incidents. Please take note of the following preventive measures in place to protect the health and safety of all participants, including the interpreters.
If possible, ensure that you are seated in a manner that increases the distance between microphones. Only use an approved black earpiece. The former grey earpieces must no longer be used. Keep your earpiece away from all microphones at all times. When you’re not using your earpiece, place it face down on the sticker placed on the table for this purpose. Thank you for your cooperation.
I 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’kmaq Senator Brian Francis from Epekwitk, also known as Prince Edward Island, and I am the Chair of the Standing Senate Committee on Indigenous Peoples.
I now ask committee members in attendance to introduce themselves by stating their names and province or territory.
Senator Arnot: I am Senator David Arnot from Saskatchewan. I live in Treaty 6 territory.
Senator Martin: I’m Yonah Martin from British Columbia.
Senator McNair: John McNair, New Brunswick, Mi’kmaq territory.
Senator Hartling: Nancy Hartling, New Brunswick, Mi’kmaq territory as well.
Senator Prosper: P.J. Prosper, Nova Scotia, Mi’kma’ki territory.
Senator Sorensen: Karen Sorensen, Alberta, Banff National Park, Treaty 7 territory.
Senator White: Judy White, Ktaqmkuk, better known as Newfoundland and Labrador.
Senator Coyle: Mary Coyle, Antigonish, Nova Scotia, Mi’kma’ki.
The Chair: Today, we continue our new study examining 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 this study topic.
With that, I will now introduce our witnesses. Online, we have Brenda Gunn, Professor, Indigenous Bar Association; and Ken Coates, Professor, Indigenous Governance Program, Yukon University, as an individual. In person, we have Tuma Thomas William Young, Lawyer, Smith Law and Professor, L’nu Studies, Cape Breton University, as an individual. Welcome, everyone. Thank you for joining us today.
Witnesses will provide opening remarks of approximately five minutes, which will be followed by a question-and-answer session with the senators. I invite Ms. Gunn to give her opening remarks.
Brenda Gunn, Professor, Indigenous Bar Association: Thank you.
[Indigenous language spoken]. My name is Brenda Gunn.
[Indigenous language spoken]. My family is from the Red River.
[Indigenous language spoken]. Today, my family lives in Winnipeg.
I am Red River Métis and a citizen of the Manitoba Métis Federation. I am a professor in the Faculty of Law at the University of Manitoba and have been working around international human rights and Indigenous peoples’ rights for over 20 years, with a specific focus on the UN Declaration on the Rights of Indigenous Peoples, or UNDRIP.
Senators, thank you so much for the invitation to appear before you again on this important study on the implementation of the UN declaration. I’m here today presenting on behalf of the Indigenous Bar Association, or IBA, in Canada. The IBA is a non-profit professional organization for First Nations, Inuit, and Métis persons trained in the field of law. Our membership consists of lawyers, judges, law professors, elders, paralegals, legal consultants and law students. Currently, the IBA has over 330 registered members from Indigenous communities and nations across Canada.
Last year, the IBA submitted recommendations to the government around the development of the action plan. Our submission focused on furthering Indigenous peoples’ own laws; ensuring a gendered lens to implementing the UN declaration; protecting the right to participate in decision-making and free, prior and informed consent; promoting the economic, social and cultural well-being of Indigenous peoples; reviewing intellectual property laws, law reform and the UN declaration; implementing the UN declaration and consideration for Canada’s review of laws; and, finally, on measures to monitor, oversee and provide remedies and other accountability matters with respect to implementation.
Today, I want to focus on my comments on the right to participate in decision-making. I want to commend the federal government for passing the United Nations Declaration on the Rights of Indigenous Peoples Act. We all recognize what a significant achievement this is. I also acknowledge what a challenge it was to pull together an action plan within the legislated two-year time frame.
One concern I want to raise today is that the action plan focuses heavily on what the government intends to do but provides little clarity on how and when it’s going to achieve these things. Without a timeline, it becomes difficult to measure progress. The “how” is incredibly important. How we work together to achieve the ends of the declaration goes to the heart of the work ahead if we are indeed working toward reconciliation and relationship rebuilding, as stated by both the UN declaration and the United Nations Declaration on the Rights of Indigenous Peoples Act.
The UN declaration provides a framework for reconciliation by providing standards to be met when rebuilding and renewing relationships. It helps guide us from a colonial relationship — where the Canadian governments make decisions for or impacting Indigenous peoples — to a relationship where Indigenous peoples are self-determining and fully part of any decision where their rights are particularly and especially impacted.
The UN declaration directs us to build this new relationship based on the principles of trust, good faith, human rights, equality and non-discrimination.
Exemplifying my concern around the lack of how the government intends to fulfill the action plan are the guiding principles set out in the opening of the action plan, which state the United Nations Declaration on the Rights of Indigenous Peoples Act mandates the Government of Canada to not only consult Indigenous peoples but also cooperate with them. This means that Indigenous peoples have the opportunity, including through their representative organizations, to participate in and positively influence federal decision-making processes, with adequate time and supported by adequate resources.
What this principle fails to understand is that achieving the UN declaration requires working together in a spirit of partnership and mutual respect. Indigenous peoples are not to simply inform federal decision-making but must actually be part of these decision-making processes.
Knowing how the government works provides us clarity and transparency on how the government is going to work with Indigenous peoples across Canada to implement the UN declaration.
I recognize that figuring out this critical step of how we work together is no small task, but I can’t understand how we can do any of the work on implementing the UN declaration if we haven’t first done so. I’m not suggesting a single or one-size-fits-all approach, but these questions around how Indigenous peoples want to be part of the process and engage with the government must be understood. These processes must be agreed upon before working toward implementing the UN declaration.
How this work will be done must also pay particular attention to distinctions between First Nations, Inuit and Métis peoples, as well as regional differences, and also gender, gender diversity and other intersectional considerations.
I want to highlight three areas where consideration of how the work will be done, rather than just what will be done, is really lacking.
There’s recognition of a need to establish an independent Indigenous rights monitoring oversight recourse or remedy mechanism, but again, there is no indication of how this will be done. There’s no indication or process laid out to identify how we’re going to work together for the review of laws. Also, there is no recognition or process laid out on how we can work together to implement Indigenous people’s rights to self-determination, ensuring that Indigenous peoples can make decisions about their territories and work with Canadian governments on land and resource questions.
Kinanaskomitin. Marsee. Thank you.
The Chair: Thank you, Ms. Gunn. I now invite Mr. Coates to give his opening remarks.
Ken Coates, Professor, Indigenous Governance Program, Yukon University, as an individual: Mr. Chair, senators and fellow witnesses, it’s an honour to be with you today. I’m calling in today from northern Finland, just south of the traditional territories of the Sámi peoples. I’ll be visiting them tomorrow and talking to some of the folks involved in the political processes in Scandinavia. I’m from the Yukon and Saskatchewan, so it is a broad cross-section of experiences.
The implementation of the UNDRIP Act of 2021 is actually a vital topic. We must remind ourselves always that UNDRIP was a remarkable international achievement — quite frankly, one that I did not expect would work. It was a real accomplishment by the Indigenous folks who put it together. UNDRIP documents shared hardships, injustices, mistreatment and sorrows of Indigenous peoples around the world, and it covered a whole variety of Indigenous groups, cultural encounters and historical and legal settings. In its early years, after its passage at the United Nations, UNDRIP was described as an “aspirational document,” outlining what Indigenous people deserved from their national governments and what national governments and the United Nations together felt was actually owed to them.
UNDRIP was not crafted as a definitive and detailed legislative program. It was not designed to respond to any particular national or regional context but as a general statement of principles and values. What it did was call the world to do much better — a lot better than what they’d been doing with the treatment of Indigenous people, starting with respecting Indigenous and treaty rights but going far beyond that in the areas of equity and social justice.
As a non-Aboriginal person, I come at it differently from Indigenous scholars. I’ve been troubled by how UNDRIP has unfolded to this point. The response in Canada to UNDRIP has been mixed, at best. Most non-Indigenous people in Canada ignore it or, if they have paid much attention to it, see it as a vague roadmap toward better relationships, not a definitive, detailed plan.
In my experience of talking to Indigenous people at the community level, they’re much more familiar with UNDRIP than non-Indigenous people are and know about the implementation act. I would also say, in my experience, few of them look at this current process with either excitement or hope — they see it as another part of a process that Canada has gone through over many years.
As a way of framing my conversation and contribution today, permit me to make four different observations about UNDRIP and the Canadian implementation process more generally than perhaps others might. I will start with this: The history of Indigenous-government relations in Canada is one of broken promises and a failure to honour commitments. You can see this from the Peace and Friendship Treaties in the Maritimes in the 18th century. It goes through to the Royal Proclamation, also in the 18th century, to the historic treaties starting in Ontario and moving across Western and Northern Canada.
UNDRIP and its implementation has the potential to be another example of heightened expectations and broken promises. I urge the Senate and Parliament to ensure they’re truly committed to the shared completion of the process — and I agree with Ms. Gunn’s observation about making it a shared process — and to actually honour the promises. Don’t go down the path unless you’re prepared to finish the exercise. Frankly, we’ve seen that happen too many times before.
UNDRIP describes the abuses and excesses of colonial powers and nation states regarding Indigenous peoples. It outlines the minimal steps necessary to address the damage. The damage is huge and in some places permanent, but no one has actually put a cost to this. I read through the implementation plan again today in quite some detail, and every line spoke to me of tens of millions of dollars — every single line. I wonder if people have actually really put a cost to this. Is it possible to fund UNDRIP? I don’t say this to say we shouldn’t do it but because I want us to do it right. Is UNDRIP and the implementation act politically saleable?
I’ll use one example. I have grave concerns about the rapid and continuing decline of Indigenous language use across this country. Look at the UNDRIP provisions on education and services and the implementation part of that — it will cost literally billions of dollars to do this properly. It’s urgently needed. We should have done this 50 years ago. We should never have had to do it in the first instance. Our present efforts in language retention and strengthening are tiny compared to the actual need.
Third, implementation is a process and not a destination. It’s not clear to me that the Canadian public has a clear vision — certainly not one that’s shared with Aboriginal peoples — of the desired outcomes. In other words, we’ve started down a path but don’t know where we’re going. Real autonomy, political re-empowerment, prosperity sharing and cultural revitalization are essential if Canada is to honour the UNDRIP agreement.
Evidence of general Canadian support for these outcomes is scarce. In the past — and I see elements of this in the implementation plan — the goal was to tinker with programs and make small changes rather than a fundamental reordering of our government system.
My fourth point — and you’ll know this because you’re working on this document very carefully — UNDRIP implementation is incredibly complicated and extremely difficult. British Columbia’s draft implementation plan and the initial steps they’ve taken to implement UNDRIP show this to be true. Implementation cannot be constrained by artificial deadlines and must be driven by Indigenous priorities, protocols and timing — not be set by a legislative agenda or a particular government’s agenda.
It will take decades to get this right. The Yukon signed its land claim deal in 1993. It has only implemented a small part of the overall modern treaty of 1993. This agreement will take decades to get right, recognizing that as things go slow, the costs and consequences of doing so are borne disproportionately by Indigenous peoples.
In sum, the implementation of UNDRIP, if done properly — and I truly want to see it done properly — will transform Canada in constructive and positive ways. It’s not simply a matter of changing a few policies and programs. It calls on our country to address historical injustices and return the country to real partnership with Indigenous peoples.
What I see is that First Nations, Inuit and Métis are eager for such a reimagining of Canada. They deserve it. I’m not yet clear that the Canadian public is prepared for such a transformation. We have some places — the three northern territories and northern Quebec being decent examples — where the kind of transformation we desire is actually under way.
Is the country as a whole ready for this transformation? Sadly, I think it’s not. A huge part of our job at this juncture collectively — Indigenous and non-Indigenous people, parliamentarians, academics and others — is to actually do the work of getting Canada ready for UNDRIP in a positive and constructive way. We have a lot of work to do before we actually get to the starting line, let alone the finish line.
Thank you very much for your attention. I wish you all the best in your very important work.
The Chair: Thank you, Mr. Coates. I’ll now invite Mr. Young to give his opening remarks.
Tuma Thomas William Young, K.C., Lawyer, Smith Law and Professor, L’nu Studies, Cape Breton University, as an individual:
[Indigenous language spoken].
Greetings, everyone. I would like to thank the senators for inviting me to come and give you my perspective on the questions asked of us.
I also want to give a nod to my colleagues who are on the line here. They’re very well respected in their fields, and I acknowledge them and their hard work. I am really honoured to be in the same room as everybody here, especially my L’nu colleagues here.
When I come into this room, it gives me a smile, because there was a time when there was none and these rooms were not exactly welcoming. Times have changed, and that’s part of the story.
As you have heard, there are presentations. We can make presentations and talk about academic things, but I want to tell you the story of how we got here. I only have about five minutes — we don’t have a whole lot of time — and the story will have to be revamped, but this story goes back to how it was told to me, about international law and the United Nations, and it started in the 1970s.
Even as a young child, I would hear about the grand council making petitions to the United Nations. I heard stories of one of your now-retired fellow senators, Senator Lovelace Nicholas, and her battle, going to the United Nations. The grand council went there in the 1980s, so I am also talking about their role there.
This story begins long before we are even here; it begins a long time ago. The story will continue, and it has continued. We just got here. We’ve gotten a few chapters in there. This is how this story is told in my communities, in the Mi’kmaq communities, the story of UNDRIP and how it came to be.
When I am with my colleagues at the Indigenous Bar Association — as you heard from Ms. Gunn — we often hear from the old elders at the IBA about their role in crafting UNDRIP and how difficult their struggles were, particularly the struggle over the letter “S” in that thing. Even down to a single letter, it was always a struggle, but they persevered, and we are now there.
In this legislation, in the implementation and the action plan, there will be struggles. We’ve all gone through them here.
That is the role of our Indigenous people, the L’nu people who made this a possibility. They started thinking about this. It wasn’t just a few years ago; the implementation was not here a few years ago.
The story also contains Canada’s role. When the story is told in our communities, we tell the story about what exactly happened at the United Nations — the struggles to get the letter “S” and the adoption by the General Assembly of the United Nations, with four countries refusing to accept it at the time. You know that story, and Canada is part of that story. It is told; we don’t forget that.
Then the story changed again when Canada decided to adopt it and bring it into existence in the federal system. That was, I believe, a few years ago.
The next chapter is the story of the implementation act and how that has caused the expectations of many people in our communities to rise. “Do you think it really will actually happen? Can there be a change in the relationship?” That’s really what it is all about — our relationships with each other.
There are other parts to the story — the implementation act and the action plan and going through it. That raised more expectations. “Okay, we’re starting.” But then others tell us, “Be careful. Be warned. We’ve gone down this road before. We know that it may come to nothing.”
Then we have the stories still being developed about the role of the provinces. We know that one province has developed their own implementation act, but what about the other provinces and territories — or even our own Indigenous governance? That story is still unfolding and being told. We don’t know where it’s going to lead us.
My final point in my five-minute presentation is that I would ask the senators to think very carefully about how this story is told from the Indigenous perspective. Everything is woven in there. Even that Indigenous perspective is not unanimous. People have different interpretations based on their own expectations. I probably have a legal perspective, a legal interpretation, et cetera, on this, but some of my grassroots cousins have different interpretations of what free, prior and informed consent means and how this will work out. Many others will ask, “Will it make a change?” because they don’t see any right now.
So, the story is still unfolding. Interwoven into this story is the significant role played by the Royal Commission on Aboriginal Peoples. We must never, ever forget that. Also, the Truth and Reconciliation Commission, or TRC, and the Calls to Action played a very big role here. We must never forget that story. Also, we have the story of the National Inquiry into Missing and Murdered Indigenous Women and Girls and the Calls for Justice. Those are part of the story here.
When you, as senators, are looking at studying this implementation, I suggest you must look at those stories again. You may say, “I’ve heard that before. I’ve listened to it. I’ve read that.” Stories are told over and over again. It’s the same with the stories of how the houses of Parliament came to be. I don’t know how that story goes. I went up to the other place, looking for the old Senate, and then I went over there by the photographic gallery, and I landed here. Somebody forgot to tell me that part of the story. Anyway, it’s all part of our history, interwoven with all of this.
I don’t have a lot of time. In my remarks, there are 10 items I can talk about, but I really want to focus on a single overarching one. That is how to bring L’nuwey Tplutaqan to the implementation. L’nuwey Tplutaqan is Mi’kmaq law — Indigenous laws and legal principles. How can we use legal pluralism? They talk about that in the action plan. We have studied legal pluralism and all the other theories and Indigenous legal theory in one part, but then we bring that to the work we do. I will tell you some stories of how I do it. It can sound a bit frightening. How do we weave that into the legislative work of the Senate and House of Commons and into the role of the Crown?
I can show you some examples of how I do it in my daily life and the work I do. That’s where I want to focus my attention — how the Senate, Parliament and Canada can include and celebrate L’nuwey Tplutaqan in the work they do. Wela’lioq.
The Chair: Thank you, Mr. Young. We will open the floor to questions from senators. We are on a tight timeline. If you can keep questions and answers as succinct as possible, that would be helpful.
Witnesses, if you don’t feel you have enough time to provide a complete answer, feel free to provide an answer in writing as well.
I will open with the first question; it’s for all the witnesses. In your opinion, what are the top three topics or issues that this committee should focus on during its study into the implementation of the UNDRIP Act? How should progress on the implementation of the action plan be measured, and by whom?
We will start with Ms. Gunn.
Ms. Gunn: Thank you so much for the question and getting us focused on the questions that you are addressing. In my presentation, I focused on one — studying both how the government has consulted and cooperated thus far and what information the government is seeking from Indigenous peoples on how Indigenous peoples want to participate going forward.
With the legislative time frame, it jumps so far to figuring out what we will do that it didn’t do a great job of thinking about how, and that’s important.
The second point, which relates to measuring progress, is figuring out timelines. There is so much about what we will do and what the government will accomplish in five years, but there is no sense of where they are starting or ending and how we will move through this. There is a lot of work that must be done around that just to figure out how progress should be addressed.
Another topic that needs to be studied around the implementation act is how the government is educating itself. I didn’t have a chance to get to that, but I want to point to the submissions you received from the Coalition for the Human Rights of Indigenous Peoples and questions about how the government is training itself to work toward implementation.
I’m concerned that a lot of the training is being done with and through the Department of Justice, whose staff may not have much experience working with international law. I know of no law school in Canada that includes international law as a required course. So, again, finding out how the government is educating itself should be studied. I think those are probably my top points.
Lastly, on measuring progress — this needs to use Indigenous peoples’ measuring sticks. How do we want to judge what we are going for? My measuring stick is this: How do I feel about the future for my daughter? She is 5 years old. It took us a long time to even get to this act. Am I seeing progress? Am I feeling better about the world that she is living in? It is not just checkmarks in boxes regarding how many items on that action list have been completed. Thank you.
Mr. Coates: That is a wonderful question. Talk about frightening us in the very first instance, Mr. Chair. In the first instance, action plans terrify me. They are long and complicated — they have long, long lists. They are daunting, to say the least. I would mention three things in terms of priorities. You must get the consultation and engagement piece right. Ms. Gunn is completely right on that. If you do it the wrong way, even if you get the right result, you won’t get the kind of peace and solidarity you want out of this process. How is the consultation being done? How is the engagement going to proceed?
Second, you shouldn’t get too lost in the weeds before you know what the goal is. What will Canada look like at the end of this process? What is the target for implementation? When you have UNDRIP in power, what will it actually look like?
That part is very valuable. The third aspect is the combination of timelines and budget. It will cost billions of dollars to implement UNDRIP properly, which is far more than anybody has guessed. Whatever you think it might cost, multiply that by five and you might get close. You must be very clear about the timelines to keep those expectations that Ms. Gunn talked about in line and under control, and to let people know that they are there.
How will you know you have made progress? I will say two things about progress. To use the Yukon, the Northwest Territories and Nunavut as examples, people often refer to the treaty processes in the North as different ways of failing, because they have not been implemented in full.
Also — and this is a bit different — is the spirit of UNDRIP being honoured in the daily activities and lives of Parliament? Each day, when you meet and talk about issues pertinent to the country, have you taken into account the obligations under UNDRIP?
By all means, look at the problems, try to fix the policies and make things better. But, as you’re going forward, every day, the spirit of UNDRIP must define and motivate Canada in different powerful, exciting and dramatically unique ways. To use the example of the Yukon again — there, modern treaties have not been fully implemented, but the spirit of the treaties hangs over the territory in a positive way every single day; the Yukon operates under that. I encourage you to ensure that kind of ethos is present in the management of this implementation act. Thank you very much.
Mr. Young: While looking at the questions, I was thinking about how to answer them. I came up with one or two points, and those are around the monitoring plan, which also has an education aspect to it.
The implementation action plan calls for the creation of a monitoring plan or mechanism. That’s where your attention can be focused, because a lot of the international work has been done. There will probably not be any more work done on that area. The legislative work — for the most part — has been done. It is now getting to the implementation aspect, and we must start working on it. It’s going to be hard work. But one of the things that communities are looking to see — and not just Indigenous communities, but also the Canadian community as a whole — is whether something will actually be done. Often, we have all these commissions, inquiries, et cetera, and they make many recommendations, but there is no monitoring plan.
In fact, one example I have is the Mass Casualty Commission in Nova Scotia, the inquiry and the recommendations that came from it. One of the recommendations was that there should be a progress monitoring committee, and that committee has been created. They take reports from the province — from the police and others — and report back on what they have done to implement these things. Perhaps that’s the model that should be looked at here. That would go a long way toward accountability and transparency for both Indigenous and non-Indigenous communities.
Because some people will say, “What happened to this? Was it aspirational? Did it just disappear?” But a monitoring committee like that would keep UNDRIP in the public eye and ensure it is being implemented with the respect it deserves.
That’s my first basic point on that. My second point is around education on UNDRIP in many of our communities, including our public service. At the tables where I sit, it is mentioned that, through the implementation act, the Canada School of Public Service will offer courses. Senior negotiators and senior lawyers are often tasked with this. They are brought in as the hired guns. They may not get that training and education. They may dismiss it and say, “I don’t need it.” But it is vital for them to bring the implementation of UNDRIP into the work that they do and to have that perspective. Those are basically my two points.
Senator Arnot: Thank you, witnesses, for coming today. All of the witnesses touched on two issues that I would like to draw out. I will let them answer the questions in the way they want. My own opinion — as I said earlier in this committee — is that priority one should be item 19, the creation of an Indigenous rights, recourse and remedy mechanism, which all the witnesses talked about, because that might accelerate the implementation and help make things work together the way they are supposed to.
So, do you have any comments on item 19? How should it be implemented? Should it be a priority?
My second question has also been touched upon by all three witnesses. It is about the power of education, which I have a strong belief in. If I asked a number of people in the city of Saskatoon today about what UNDRIP means, they would not be able to answer the question. Does the federal government have a fiduciary responsibility to educate all adult Canadians about the purpose of UNDRIP and why and how it should be implemented?
Should that be a priority that this committee recommends? I ask that in the sense that — and one of the witnesses talked about the civil servants’ understanding — the general public has very little understanding. That understanding needs to be amplified. I am referring to the adult cohort, because I hope that in the K to 12 school system, students are now learning a lot about these issues.
My questions are on whether the power of education should be something we explore or make a comment on in this study, and also item 19 and the Indigenous-led independent mechanism.
If those questions are too big, witnesses could respond in writing, but I think they have some comments to make.
Ms. Gunn: Sure. If I may start, I might choose to answer your question on the monitoring mechanism in more detail in writing following this meeting. It was part of our submission on the action plan. We have some thoughts.
However, I’ll start with a simple yes; I agree with you that it should be one of the starting places, or at least one of those top priorities — one of the first things we’re trying to figure out. It gives people confidence if, no matter what happens, we know there’s a mechanism. If you leave it until the end, you kind of must have good faith in everything as it comes along. So I agree with that.
I want to focus on the education question because it’s a really interesting one. As an academic, I educate. Also, as part of my work, I have done hundreds of presentations on the UN declaration. There is increasing interest. Honestly, if I wanted to leave academia, I could probably have a full-time job just educating people right now. There is a thirst or hunger — I’m not sure which it is — to learn this information.
Does the government have a fiduciary obligation? That’s a tough question. I’m not sure, but I think the hook is encouraging businesses to educate their staff. That’s a really good way in. Encouraging church groups and community organizations is a good way also. There is the Call to Action that encourages businesses to learn and implement UNDRIP. That is a really good in for the federal government, to encourage Canadians to learn about it through their workplaces. I also think churches and other groups are really good ways to encourage that general education.
Mr. Coates: Let me start with the second question first, senator, if I could.
There’s a really interesting province in the middle of the country called Saskatchewan that had a treaty commissioner who decided the most important thing you could do in the province of Saskatchewan was to make people understand what a treaty was and what their obligations were as members of a treaty nation, both Indigenous and non-Indigenous. You will know much better than I do, sir, that it was an incredibly successful enterprise, and people who had never thought about the treaty before came to understand it in considerable detail.
What’s interesting is that the treaty commissioner, as you know, was an arm’s-length enterprise. It was not the government speaking. If the government took it on as a duty to educate, forget it. We would get a bunch of high-sounding ads in movie theatres and during CBC shows that nobody watches, and we’re not going to get much feedback. There has to be another way.
I think Ms. Gunn talked about this brilliantly. Look at this question of getting out to other groups. Quite frankly — to use a really odd example — the resource industry is doing a better job with UNDRIP than Canadian municipalities are at present. They have a reason to do so because of the importance of free, prior and informed consent and things of that nature. They are doing a better job of educating their folks than most municipalities are.
Yes, churches are a wonderful avenue. Unions are great avenues as well. This is better as something Canadians take on as a whole enterprise, and I believe in that very strongly. You know, sir, that what you did in Saskatchewan as treaty commissioner worked. Let’s do that on a national scale.
The other question you asked, the very important one about —
Senator Arnot: You don’t have to say that, but I really appreciate what you’re saying about education and how important it is. I like what you’re saying about the components that should be doing it. Thank you. I didn’t mean to cut you off.
Mr. Coates: No, I deserved it.
I want to quickly talk about the idea of the mechanism you mentioned. Remember that Canada does not stand still while UNDRIP is implemented. By the time we actually have something that looks like UNDRIP and get through all the documents and so on, it will be 50 or 60 years from now. We must start acting as though UNDRIP is real. Unless you have a remedy mechanism now — so that Indigenous people can have their rights defended and protected under Canadian systems and law and Indigenous law — the whole exercise is worthless. Do you wait until the very end before you actually put some mechanism — some real authority — behind it? You must have authority up front.
Thank you.
Senator Arnot: Thank you.
Mr. Young: Thank you for that question. Yes, I agree there is an obligation to educate. You’ve touched on one of the more difficult aspects of education, which is the jurisdictional issues. The provinces have jurisdiction over education; the federal government doesn’t. But the federal government has a fiduciary obligation for its own public servants to educate themselves and to bring that forward, and every single one should be taught about that.
To give you an example of how difficult it’s going to be — following my colleague saying that this will take a long time — after the TRC report was tabled, filed and presented to Canada, law societies started work on implementing Calls to Action 27 and 28. That’s mandatory education for all lawyers, and all law schools are to provide this to all their students. Many law societies now have mandatory education on cultural competency — who the tribes in their provinces are, their issues and things like this. Some of them use The Path and that type of thing.
But those Calls to Action are not just about cultural competency. They are also Calls to Action on learning about UNDRIP, Indigenous laws, the history of residential schools, et cetera. We’ve only got one part, and that’s cultural competency. In some law societies, there was pushback from lawyers, so many law societies made it mandatory.
Education is wonderful, but it will also be very difficult. Let there be no misunderstanding around that. It will take time. We should start there and realize — and I am echoing my colleagues on this — that it will take a long time. We’re looking at it as multi-generational work that needs to be done.
The Chair: Thank you, Mr. Young.
I still have several senators eager to ask questions. Again, can you keep your questions and answers as succinct as possible? I may hold up this trusty sign when you have a minute left, so you know when time is getting close.
Senator Sorensen: I’m going to ask Mr. Coates a question and then ask the other two a second question to answer in writing.
Also, it is 2:40 a.m. in Finland — that’s what I googled — so thanks for being here.
I want to acknowledge two of your comments. Every level of government makes plans, but they never attach a budget to plans at the time that they make them. That is a problem at all levels of government and certainly one here. I also like your comment about the concept of beginning with the end in mind and what we want this to look like.
In your 2013 article — from 11 years ago — entitled, “From aspiration to inspiration: UNDRIP finding deep traction in Indigenous communities,” you wrote, “UNDRIP is resonating in Aboriginal communities in a way that few national politicians and government officials fully appreciate.”
I was going to ask you about what tangible impacts we have seen, but from your testimony, I already know that there are very few. However, can you name any tangible impacts that you see today as an outcome of UNDRIP?
Mr. Coates: Yes, senator, perhaps a surprising one: Canadian resource companies have done a remarkable job of recognizing that UNDRIP is going to be a part of their lives. I’m not saying for a second that any sector gets it all right all the time, but they’re actually doing quite a remarkable job of working as though UNDRIP is almost here.
If you look at groups like the Canadian Mining Association, you might think they would be upset about things like UNDRIP and protest its implementation. They’ve actually been quite relaxed about it. Why? Because they believe — as do some Canadian provinces and territories — that some of the things we’ve done under Canadian practice so far are actually at or above the UNDRIP standard.
I think the major impact has actually been in the resource sector. That’s the most tangible effect that I would describe.
Senator Sorensen: As a senator from Alberta, I appreciate that. I agree with you, from what I can see.
For the other two witnesses — and please respond in writing because it will be too long of an answer — you’ve both spoken about the need to decolonize law and revitalize Indigenous legal systems to counteract the ways the law has been historically used against Indigenous peoples.
Ms. Gunn and Mr. Young, I know you wanted to focus on how we do that and how that happens. I would be intrigued to learn more about how we actually do that. How can traditional Indigenous law be incorporated into a colonial justice system?
I was particularly intrigued by you suggesting you have examples of how you do so, Dr. Young. Again, not to give you homework, but it would be of huge benefit to me to understand more about that. We just don’t have the time tonight, which is really unfortunate.
The Chair: Our witnesses can provide their answers in writing. I think we’ll have copies of the transcript, so you can get the question from our clerk to provide your answer.
Mr. Young: Quickly, two things. First, I’m not quite a doctor yet, though some days I probably have enough grey hairs to be one.
I’m a justice of the peace in Nova Scotia, and I marry folks. There is training. There are four little sections in the solemnization, which include section 92 of the Constitution about heads of power, and section 91 deals with the dissolution of power.
When I do a wedding, the last statement is usually “By virtue of the authority vested in me by the Marriage Act . . .” I don’t do that. I say, “By the power vested me under L’nuwey Tplutaqan, I now pronounce you spouses,” and then I register it. It’s legal. I include it in some small way.
When we write contracts for businesses, contracts have a standard clause in them — “Any disputes will be resolved according to the laws of the province.” We say, “Any disputes will be resolved according to L’nuwey Tplutaqan or the province . . .” In this case, it is Nova Scotia, but whatever the context it is in.
I also wrote a decision in my small claims court that was published on CanLII. You might be able to view it. I wrote it in Mi’kmaq. As a result, I was able to bring Mi’kmaq law into the decision-making process of an adjudicator, whereas previously, you could only use statute law or common law. By writing in Mi’kmaq, I’m bringing in Indigenous law. These are small steps.
Senator Sorensen: Excellent. Thank you.
Senator McNair: Thank you to the witnesses for being here today. This is a very helpful discussion.
Mr. Coates, something you said that struck me was that we have a lot of work to do to get to the starting line, not even considering the finish line. Yesterday, we had Merrell-Ann Phare from the Centre for Indigenous Environmental Resources here as a witness, and she was discussing the term “co-development” as being substantially different from “consultation.”
As we all know, the National Action Plan states that co-development reflects the highest end of the consultation and cooperation spectrum. Ms. Phare stated:
I want to point out right away that in my experience, this definition is, respectfully, incorrect. Co-development is not part of, in my view, the consultation spectrum. Consultation is the legal duty that the Crown governments have if they want to do something that might impact Indigenous rights. Consultation is ultimately a rights-infringement process. Co-development is a government-to-government process. It is about collaborating as governments to do something that is in the best interests of all those . . . .
— at the table.
I’m curious to hear your comments on this perspective. Do you share that perspective? That question is for each of you. What are your thoughts on co-development and whether it should be as a process of consultation or obviously stand-alone?
Mr. Coates: Senator, that is a great question. Separate from this conversation about UNDRIP, I’m a huge fan of co-development of policy. Frankly, if you’re going to deal with things that have major implications for Indigenous folks — for example, resource development, environmental strategies or a strategy to solve the cocaine or opioid epidemics in Indigenous communities or communities across Canada as a whole — co-development is the way to go. It’s practical.
I don’t see it in quite the same way as the other scholar did, who saw it as more conceptual. Frankly, you need people on board to make it work.
Indigenous governments are an increasingly vital element in the process. We have more than 100 First Nations that are either out of the Indian Act or negotiating their way out of it now. They have considerable autonomy and independence.
So, I am a fan of co-development. It works quite well. Where do we see it happening? Particularly around wildlife and game management issues, and particularly in the North. As you go further south, you get less of it. The concept is one that I have seen working very nicely.
Ms. Gunn: If I could quickly reply as well — I really like how Merrell-Ann put that. I have a lot of respect for her work. It demonstrates what I was speaking to earlier, about the problem of the federal government still thinking that it is its problem to solve and just needs to talk to Indigenous peoples first.
What I hear from Indigenous communities I work with in Manitoba, around the country and around the world — and what I understand the purpose of the UN declaration to be from reading through the preamble — is actually about shifting that colonial relationship and bringing Indigenous peoples in as part of the decision-making process, which means we work together to develop legislation, policies, approaches and plans.
Every time the government wants to do something “for” Indigenous peoples, a paternalism alarm bell should be going off. What I see that flip of co-development being about is working together, knowing that the federal government does not have the answer for Indigenous peoples — or at least has not historically proven that they’re good at finding answers for us. We know what we know, can solve our own problems and want to work with the Canadian governments on these approaches.
Mr. Young: I’ll add a little bit. I’ll keep it concise.
In some ways, when you’re talking about consultation in many Indigenous communities, they immediately go straight to Aboriginal treaty rights, the process of infringement and amount of infringement in regard to the degree of consultation.
Co-development may fall into that spectrum, and it could be one accommodation in that sense. Perhaps what should be considered instead is an approach we call Etuaptmumk, or Two-Eyed Seeing, which was developed by my cousins Albert and Murdena Marshall at Cape Breton University.
Co-development can still be part of it, but “development” also has its own definition and history, with different perspectives in different areas of Canada.
Instead, maybe think about it as co-responsibility for the lands, waters and resources.
It makes it part of the decision-making process, then, to both have equal responsibility to take care of the resources for future generations.
The Chair: Thank you.
Senator Coyle: Senator McNair asked my first question. I’m glad you got that out of the way.
It’s interesting that every one of you spoke about how non-Indigenous Canadians — and I know this for a fact — don’t know much. Mr. Coates, you mentioned that if we’re going to have political will, particularly around budgetary issues and everything else we want, it’s critical for non-Indigenous Canadians to know more.
At the same time, each of you talked about how there’s hope and expectation in Indigenous communities; there’s a real risk of that hope being squandered if we don’t do something to build trust.
My question is for all of you. You each already started to touch on this. Maybe you will need to answer it in writing; I don’t know if we have enough time. What are the best ways of approaching the wide, broad education that will be required — not necessarily just in the school system, but also through many other means — for people in Indigenous communities as well as those who live outside them? It must be education for everybody. It will probably be two kinds of education about what this will take.
Mr. Coates, could you share — maybe in writing — what the Yukon has done right regarding modern treaties that are not yet fully implemented but whose spirit, as you said, is already there? What could we learn from that Yukon experience about getting the spirit of UNDRIP permeating every part of Canada?
My grandchildren at Whitehorse Elementary were learning Southern Tutchone. When my grandson was in Baker Lake, Nunavut, he was in Inuktitut immersion. There are so many ways, but the Yukon has a lot to teach us. If you could specifically talk about that in a written statement, that would be great. Thank you.
The Chair: If you could provide your answers in writing, that would be greatly appreciated.
Senator Prosper: Thank you to the witnesses for providing your testimony.
This is getting into Senator Sorensen’s question about Indigenous legal systems, but a big part of UNDRIP is looking to get in alignment with federal laws. We’re talking about many laws here.
I’m curious about what role you see Indigenous law playing within that process of alignment. Professor Young, you mentioned Etuaptmumk, or Two-Eyed Seeing. You also mentioned L’nuwey Tplutaqan, which is L’nu law. How do you see L’nu law informing that process of alignment with federal laws and regulations? How will that work?
Mr. Young: First, I’m going to go back and tell a story about a recent small claims court case. I can’t speak to the case itself, but it speaks on its own. I can tell you how I got to it.
When I took that case, it was very small. It was a custody case over a dog between a couple. They fought over the dog. Under Canadian law, a dog is not considered to be a pet. It’s property. The question there is this: Who has the better claim to the property? Who has the receipts? Who takes it to the vet? Who pays the bills? Who feeds it? That type of thing.
In this case, you’d never ask what’s in the best interests of the dog. But one of the tenets of Indigenous law is that all life has its own forces and must be respected. By using Mi’kmaq language, I’m able to draw upon what is in the best interests of the dog. I used that, Canadian law and statute law to come up with what I thought was the right decision in that case.
Another thing about that case was that the parties in a dispute were not Indigenous. I demonstrated that Indigenous law can be applied to non-Indigenous parties, similar to what the Navajo do in their peace-making process, which non-Indigenous corporations can participate in. That’s where the alignment can be.
With Etuaptmumk, or Two-Eyed Seeing, you use legal pluralism, as the action plan states, to come up with the best decision. This is not the first time it’s been done. The work of John Borrows has demonstrated that through the marriage case of Connolly v. Woolrich from the 1800s. In that case, they used Cree law to define whether a marriage was valid, in what they used to call country marriages.
Regarding other cases coming out of the Yukon about adoption and child welfare — we’re going to be creating, under Bill C-92, child welfare legislation, and many communities are looking at bringing Indigenous law into the child welfare systems.
There are all sorts of exciting ways we can do it. UNDRIP plays an important part, especially in language revitalization, in which a lot of our Indigenous law resides.
The Chair: Unfortunately, we’re out of time.
If there is any further testimony from witnesses, feel free to provide it in writing. Before we end, Senator Martin has a question she would like to ask. You can provide the answers in writing.
To be clear, you will have the transcript available tomorrow to get the question.
Senator Martin: Thank you to the witnesses. I learned a lot just listening. The story that you wove together for us was beautifully articulated. I appreciate everything you said. I took so many notes.
It’s been close to a year since the release of the action plan. There are many items, 181 measures — almost 200. It’s a lot.
Senator Arnot mentioned measure 19. I would love to get each witness’s priority list of those measures — not all of the measures, but the ones you think are most important, in the order you feel makes sense. Thank you.
The Chair: Thank you, Senator Martin. Our witnesses will provide that in writing.
Unfortunately, the time for this panel is over. I wish to again thank our witnesses for joining us and providing some excellent testimony this evening.
Again, if you wish to make subsequent submissions, please submit them by email to the clerk within seven days.
(The committee continued in camera.)