THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Tuesday, May 28, 2024
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 9 a.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: Good morning. I would like to begin by acknowledging that the land upon which we gather is the traditional, ancestral and unceded territory of the Anishinaabeg Algonquin Nation, which is now home to many other First Nations, Inuit and Métis people from across Turtle Island.
I’m Mi’kmaq Senator Brian Francis from Epekwitk, also known as Prince Edward Island, and I am the chair of this committee.
I will now ask committee members to introduce themselves.
Senator Prosper: P. J. Prosper, senator for Nova Scotia, Mi’kma’ki territory.
Senator Greenwood: Margo Greenwood from British Columbia. I’m from Treaty 6 territory.
Senator Coyle: Mary Coyle, Antigonish, Nova Scotia, Mi’kma’ki.
Senator Sorensen: Karen Sorensen, Alberta, Treaty 7 territory.
The Chair: Thank you, senators.
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 the UNDA by Canada and First Nations, Inuit and Métis peoples. The committee is hearing from witnesses to further refine its study topic.
With that, I would now like to introduce our witnesses: from the Assembly of Manitoba Chiefs, or AMC, Grand Chief Cathy Merrick; and as individuals, Merle Alexander, Principal Lawyer at Miller Titerle; and Janice Makokis, Ianni Legal Scholar. Thank you all for joining us today.
The witnesses will have roughly five minutes for opening remarks, which will be followed by a question-and-answer session with senators. I will now invite Grand Chief Merrick to give her opening remarks.
Cathy Merrick, Grand Chief, Assembly of Manitoba Chiefs: Good morning. [Indigenous language spoken]
I represent 62 nations out of 63, and I’m a Cree from Cross Lake, Manitoba.
I greet each and every one of you in a good way and a good heart. I want to thank the members of the standing committee for being invited to speak on your study of the implementation of the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP.
AMC’s position aligns with the implementation of the UNDRIP and ought to be realized as part of bringing Canada’s law and policy into consistency with the UNDRIP. The AMC is a First Nations partner with Canada on the legislation of UNDA, the United Nations Declaration Act. In this work, the AMC’s overarching aim is to advance the self-determination, jurisdiction, laws and self-governance of First Nations in Manitoba. The AMC takes Canada’s promises and legal commitments seriously. This requires bold law, policy reform and mandates and strong political will to change.
Unfortunately, we have been disappointed by the minimal implementation work we have seen to date. What we have experienced is openness to UNDRIP from certain individuals within the Department of Justice and Crown-Indigenous Relations and Northern Affairs Canada, or CIRNAC, who are willing to schedule meetings about UNDA implementation, speak with AMC representatives about the Action Plan and provide contact information for the leads of different action plan measures in various departments.
While that is welcome and needed, in and of itself, it is insufficient. We need to see the action plan measures leads in various departments actually doing the work of implementation, hand in hand with the Assembly of Manitoba Chiefs and other First Nations partners. We have not yet seen this take place, but it will hopefully happen soon.
I will share with you the Assembly of Manitoba Chiefs’ approach. The key barriers we have encountered are a lack of funding and a lack of mandates.
Following the passage of UNDA and the release of the Action Plan, the Assembly of Manitoba Chiefs have passed a number of resolutions that give the AMC various mandates to advance the implementation of UNDRIP with Canada.
The mandates include the following:
In the area of health, the Assembly of Manitoba Chiefs, working with the AMC-mandated First Nations Health and Social Secretariat of Manitoba, were mandated to co-draft federal First Nations health legislation. It is noted that because of the unique First Nation treaty relationship with the Crown, the chiefs also developed a regional First Nations-specific position in response to Canada’s federal Indigenous health legislation. This is treaty-based and identifies principles of co-development so that it aligns with Article 19 of UNDRIP, with First Nations providing their free, prior and informed consent prior to Canada adopting and implementing the legislation.
In the area of gaming, AMC continues to express the interest to partner with Justice Canada on UNDA action plan measure 1.78 to change the Criminal Code provision to recognize First Nations’ ability to exercise jurisdiction over gaming.
In the area of citizenship and recognition of treaty rights, the AMC has advised Canada that it remains willing to partner with Indigenous Services Canada, or ISC, specifically in action plan measures pertaining to citizenship, and to carry out this action plan measure implementation work with an objective to increasing AMC member’s First Nations self-determination over citizenship matters that recognize the treaty lists and not the registration and membership provisions of the Indian Act. Just yesterday, the Assembly of Manitoba Chiefs’ committee on treaties and self-determination identified this area as a priority for the AMC and will call upon the Assembly of First Nations, or AFN, to support that position.
As well, the Assembly of Manitoba Chiefs identifies the AMC to be the regional coordinating First Nations organization responsible for the implementation of the UNDA action plan measure 2.2. The AMC will work with AMC First Nations and their treaty groups, as well as all regional First Nations organizations, to co-develop and co-draft with Canada a government-wide approach for honouring treaties that are not done on an individual basis by each federal department.
In the area of justice and Missing and Murdered Indigenous Women and Girls, or MMIWG, the AMC has been mandated to implement the MMIWG national inquiry’s Call for Justice 5.1 to fully enact the Aboriginal justice inquiry. This approach represents a regional First Nation response to related UNDA action plan measures and aims to engage in a tripartite process with Canada and Manitoba in alignment with UNDRIP Article 34.
As well, the Chiefs-in-Assembly also mandate the AMC’s secretariat to work with other regional First Nations organizations to develop and carry out a First Nations response to the MMIWG Calls for Justice and direct the AMC Women’s Council to provide ongoing oversight, guidance and direction on its implementation.
As well, the AMC has been mandated as the regional First Nations organization to implement the UNDA action plan measure 1.99. This is to co-develop with Canada a regional approach through applicable programs and policy supports to develop a regional approach to support funding for First Nation‑led cultural initiatives.
In the area of languages, the AMC has the mandate to take the regional lead in the implementation of the UNDA action plan measures 1.91 and 1.92, and for the AMC to co-develop with Canada a regional approach by working with AMC member First Nations and all regional First Nations organizations to amend and strengthen the Indigenous Languages Act for First Nation languages.
Finally, the AMC has been mandated to lead regional discussions on the action plan and measures associated with the Crown’s consistency of laws obligation within UNDA at section 5, including federal legislation and policy for AMC to work with other First Nations organizations to develop a regional approach to the shared priorities of the action plan.
On the matter of the lack of funding, presently there is one fund dedicated to supporting Indigenous engagement on UNDA implementation — the Indigenous Partnership Fund administered through the Department of Justice. An Indigenous partner may receive $200,000 a year — perhaps more or less — to engage with the Department of Justice on UNDRIP matters. This level of funding does not provide sufficient capacity to First Nations to meaningfully participate in the implementation of numerous action plan measures. This is the first barrier to funding — a lack of funding to First Nations and their organizations to facilitate their involvement in the process of implementation.
Further, the Department of Justice funding for Indigenous partners does not fund the work of implementation at the departmental level as federal departments are leading the implementation of the action plan measures. Thus, there must be departmental allocations of funding to advance the implementation of action plan measures, and this is where we see the second funding barrier.
There appears to be ad hoc, arbitrary funding of action plan measures at the departmental level with some departments allocating funds for implementation and other departments not designating any funds. If no funds are designated, the leads for action plan measure implementation in that department have no resources to carry out implementation work. We have encountered this with action plan measure 2.9 and the critical issue of First Nations citizenship. There are leads within Crown‑Indigenous Relations who are eager to work on implementation, yet have no funding. Given the lack of departmental funding, our discussions with CIRNAC currently centre on developing a proposal to secure departmental funds to advance a part of the action plan measure 2.9 work. We are hopeful that this proposal that CIRNAC leads will be able to secure some funding, yet there is no guarantee.
I want to pause to let this sink in and to reiterate the key take‑away: Canada is legally required to implement the Action Plan under UNDA, yet Canada, as represented by its federal departments, is not presently funding implementation in any guaranteed or coordinated way.
It is hugely disappointing to the AMC that implementation work related to the critical issue of citizenship is not being funded. First Nations continue to be subject to the Indian Act, an oppressive —
The Chair: Grand Chief Merrick, I’m sorry to interrupt, but we’re going to ask you to wrap up reasonably soon. We still have two other speakers to give opening remarks, and then the senators are anxious to get to questions.
Ms. Merrick: Okay, thank you. I’m making reference to the Indian Act and its lacking in terms of citizenship.
I thought they timed my statement, so I do apologize for that.
The Chair: That’s fine, and I remind witnesses too, if there’s anything you would like to add, you can certainly do so in writing after the meeting as well.
Ms. Merrick: Okay, that’s fine.
The Chair: Thank you again, Chief Merrick. Now we will go on to Mr. Alexander to give opening remarks.
Merle Alexander, K.C., Principal, Miller Titerle, as an individual: Good morning, senators. I’m joining you this morning from Lekwungen and Wsanec territories here in beautiful Victoria, British Columbia.
I would like to speak about a subject matter which I don’t think receives enough emphasis, which could have significant impacts on the implementation of UNDRIP, and that is the Aboriginal economic rights test. Of course, the status of UNDRIP in terms of the interesting circumstances we find ourselves in British Columbia, where we are implementing both the United Nations Declaration on the Rights of Indigenous Peoples at a provincial level and also engaging the federal UNDA legislation. Then I will provide some examples of the application of UNDRIP in British Columbia, trying to dispel those fears.
Before I start, I think a couple of comments are in order. I think it’s the case that we remain impoverished beneficiaries of the economic cycles in our territories, and this inequity cannot continue.
Second, we must be proactive in our affirmation and stop being on our heels constantly, as the duty to consult has taught us.
Third, there’s a material tectonic shift occurring in our favour, and we need to seize this change for the betterment of our grandchildren.
First, let’s talk about that constitutional economic right. Since the Van der Peet trilogy, Aboriginal law has affirmed and developed three categories of Aboriginal economic rights in Canada. These three purposive categories are: First, food, social and ceremonial. Second, sale, trade and barter for livelihood, support and sustenance, but not for the accumulation of wealth. That’s often referred to as the right to have a moderate livelihood. Third, which is the pinnacle of those three rights, is the sale, trade and barter of a commercial nature.
On that, Delgamuukw and Tsihilqot’in have further elaborated that title and all other Aboriginal rights have an inescapable economic aspect. It’s important to say that that’s very powerful, particularly because there are no other peoples that the highest court has recognized to have constitutionally protected economic rights. I believe there is a real tremendous powerhouse to harness there.
Second, we are — as we have touched upon — at the infancy of a tremendously empowering implementation of UNDRIP in B.C., as I said, being the sole jurisdiction where both the provincial and the federal Crown have agreed to make laws consistent with UNDRIP. Of course, the Northwest Territories is also just at the beginnings of that work.
On economic rights, Article 3 connects the right to self‑determination and our right to pursue economic, social and cultural development. Article 5 is twofold, as it speaks to our right to maintain and strengthen our distinct economic institutions while retaining the right to participate in the economic life of the Crown. Article 20 speaks to the right to maintain and develop our economic institutions.
Let’s talk more about what the senators and the study mostly want me to, which is the application. We need to consider Indigenous peoples in terms of their relationship with the Crown. I also think this is partly at the root of a tremendous problem. In Canada — particularly in British Columbia — we are experiencing almost an UNDRIP duty to consult saturation where First Nations have a reciprocal obligation to respond to interactions with the Crown and interactions with proponents in the duty to consult framework, and that in itself is a very substantive weight. Of course, with a pretty vigorous implementation of UNDRIP at the provincial level and, as Grand Chief Merrick said, a fairly light implementation of UNDA at the federal level, this is creating a significant weight on First Nations.
In terms of the relationship with the Crown, we also need to consider that there are still two very powerful arms: One, the substantive economic rights arm; and two, the right to self‑determination and self-government co-jurisdiction or the consultation intergovernmental arm. The empowered idea is to fight with both arms and not one tied behind your back. These arms need each other. Governance without a functioning economy is wishful thinking, and an economy without self‑determined governance risks running roughshod over our rights and those of future generations.
On the substantive economic rights arm, these need to be determined by our Indigenous knowledge and our Indigenous legal orders to be fully informed of the applicable law. Unlike other economic development, we have a built-in sustainable development requirement to preserve our territories for future generations.
Title requires us to ask ourselves: Will this deprive my children and grandchildren of their future rights? This requirement is not simply imposed on us by the courts; it flows from the knowledge and the wisdom of our peoples governing our lands and territories for thousands of years — or millennia — or since time immemorial, according to our own principles and procedures. Our peoples were wealthy, shaping and enhancing our territories and resources for the benefit of our peoples. We traded internationally in complex and sophisticated networks.
The federal action plan to implement UNDRIP where it does address economic rights mostly speaks to increasing economic participation of Indigenous peoples in various Crown economic activities, such as natural resource development and the gaming industry. Action item 74 speaks to advancing economic reconciliation through Indigenous economic development and addressing persistent economic barriers, including the impacts of colonization and inequitable policies. Action item 75 speaks to the co-developing indicators of poverty and well-being, including non-income measures of poverty.
To address the persistent economic barriers faced by Indigenous peoples and communities, it is naturally crucial to uplift First Nations’ legal orders. The unilateral imposition of the Crown structure fragmented not only our governance and law but also our distinct economies. This has benefited non-Indigenous governments and third parties and resulted in the frequent disposition and destruction of Indigenous lands in the name of economic development or economic success. However, Indigenous indicators of economic success — a foundation of self-determination — are rooted in who we are as distinct peoples and founded in our law and obligation of our territories.
On that note, I would suggest that there is an important role for the Senate committee in studying and exploring how Indigenous peoples and communities view economic well-being. Understanding not only Indigenous indicators of poverty but Indigenous economic indicators of wealth according to their own legal orders would support the successful implementation of UNDRIP and the achievement of economic measures identified in the action plan.
Furthermore, action item 4 under the First Nations priorities section calls on the federal government to work closely with the institutions under the First Nations Fiscal Management Act, Indigenous Services Canada and other relevant federal and Indigenous partners to explore new concepts and the co‑development of new or enhanced initiatives to allow First Nations to strengthen their capacity and assume greater jurisdiction in areas of financial management, taxation, access to capital markets and infrastructure-related activity. This action item is particularly noteworthy. Achieving self-determination depends on Indigenous nations’ ability to autonomously finance their self-government rather than relying on fiscal transfer payments. Nations do not possess the means to finance their own government.
I’ll close by going off script and saying that one of the things that I have experienced. I have many different roles. I am general counsel to the B.C. Assembly of First Nations, which my colleague Chief Merrick will probably know me from. That puts me in a lot of rooms in implementing UNDRIP in British Columbia, and I think that her experience is shared with mine. There has been an underfunded and impoverished approach thus far in implementing UNDRIP. It’s just not being funded with the vigour or the political level of direction particularly when compared to the B.C. experience where there has been a really substantial shift towards implementing UNDRIP, including a restructuring of many different provincial departments and agencies. That contrast does create a very distinct lens.
Hopefully, we will have some ability to answer some of those hard questions you were telling us we could expect. Thank you.
The Chair: Thank you, Mr. Alexander.
Janice Makokis, Ianni Legal Scholar, as an individual: [Indigenous language spoken] Good morning, honourable senators. I’m from the Saddle Lake Cree Nation located in Treaty 6 territory in what is now called Alberta.
I present to you this morning as someone trained in Canadian common law and my own peoples nehiyaw laws. I am an Ianni Legal Scholar at the University of Windsor’s Faculty of Law, an advisor and I was the co-chair of the North American Indigenous Peoples Caucus, or NAIPC, from 2013 to 2015. NAIPC was the body responsible for bringing forth the positions of Indigenous peoples and nations to the various United Nations bodies that consider Indigenous issues for study and consideration. I co‑chaired the World Indigenous Peoples Caucus in Alta, Norway, in 2013 alongside the late Arthur Manuel.
My role in NAIPC is important here in relation to the position of the declaration and the international rights viewed through international customary law and legal instruments.
In my time as co-chair of NAIPC, I participated in, observed and chaired meetings that articulated the position of North American Indigenous peoples, many of whom are from Canada, regarding the outcome document of the UN high-level plenary meeting process. The 2013 NAIPC meeting position was clear that NAIPC will hold to the position that the Indigenous peoples’ outcome document shall protect and advance the inalienable fundamental rights we have as Indigenous nations and peoples. The purpose of the high-level plenary meeting of the UN General Assembly was to share perspectives and best practices on the realization of the rights of Indigenous peoples, including to pursue the objectives of the declaration.
There was great concern expressed about participating in the global caucus meeting in Alta, Norway, because many feared the outcome document would be watered down to fit within state governments’ agendas.
The global Indigenous caucus meeting went on to produce the Alta Outcome Document that was submitted for consideration by state governments by the UN General Assembly in 2014. The Alta outcome document stated:
We further affirm that nothing in this process or its outcomes may be interpreted as diminishing or eliminating any of the rights of Indigenous Peoples contained in the Declaration, or any of the other international standards which protect, defend and uphold the inherent economic, social, cultural, civil, political, educational and spiritual rights of Indigenous Peoples.
These statements highlighted our concerns about how state governments could potentially use elements of the outcome document from the UN General Assembly to diminish our international rights as we understand them and spent decades advocating for in various international committees and UN bodies.
I raise these concerns here with honourable senators because some of the elements I see in the UNDA and the action plan steer away from these positions and have Indigenous peoples being absorbed into Canada’s legislative and policy agenda thereby ignoring international standards and the international treaties that many Indigenous peoples entered into, including my ancestors from Treaty 6.
Treaty peoples have over 125-plus years of broken promises and unfulfilled treaty obligations by the state of Canada.
The UNDRIP legislation and action plan were developed during the COVID-19 pandemic when many First Nations and Indigenous peoples were focused on pandemic responses. What deep engagement was done with rights holders? There are First Nations in Alberta, the N.W.T. and elsewhere that feel the legislation and action plan were developed without the free, prior and informed consent, an international principle built directly into Article 19 of the declaration.
The legislation and action plan are violations of our international treaty and treaty rights. The proposed law will fundamentally alter our relationship with the Crown by off‑loading the Crown’s obligations and responsibilities, as stated in number 27 under “Shared Priorities.” Some treaty nations and peoples see the plan connected back to the 1969 White Paper. Treaty nations in Alberta have not forgotten the intent of the white paper because our grandparents gathered and advocated strongly against it. In fact, my grandmother gathered elders, chiefs and peoples in our area to fight against the 1969 White Paper, forcing former Prime Minister Chrétien — the Minister of Indian Affairs at the time — to come to our territory to meet with our people about our concerns.
These are the stories and history I heard growing up that resonate in our memories and why I have concerns about what I see unfolding with the implementation of the declaration law and the action plan.
I respectfully remind honourable senators that international treaties means that one party to the treaty does not make laws for the other party. The other party to the treaties is the Crown. Canada is not a party to our treaties. During the treaty-making process, our ancestors were assured by the Queen’s representative that we would continue to live as independent nations without interference from the Crown’s government. Now, Canada, through the UNDRIP legislation and the action plan, will interfere within our treaty jurisdiction through these substantive legal and policy changes.
I will wrap up by quickly saying that there are things within the legislation and the action plan that raise alarm bells for some folks, especially in Alberta and other jurisdictions, who never had the opportunity to participate deeply and engage the contributions to some of the content within the document. I know you will have many questions for us, and we can have a conversation about that. Hiy hiy.
The Chair: Thank you, Ms. Makokis.
We’ll now open the floor to questions from senators. I will start with the first one, which is for anyone who would like to answer it.
The action plan states that the Government of Canada will:
Develop and implement a process and further direction for federal government departments and agencies to ensure bills and proposed regulations are consistent with the UN Declaration . . . .
However, in recent testimony before the committee, Inuit Tapiriit Kanatami, or ITK, President Natan Obed emphasized that these measures would require substantial changes to the status quo and added that most departments insist they require additional authorities from central agencies to proceed with implementation.
Do you agree with this perspective? If so, what type of changes should the federal government implement to improve the process used to create new laws and regulations impacting Indigenous peoples?
Mr. Alexander: That’s a good question.
I think I generally agree with the ITK on that particular perspective. Through the B.C. First Nations Leadership Council, we have engaged in developing a protocol, which is that regional approach that Grand Chief Merrick touched upon. Even in the development of that protocol, we have only seen a handful of pieces of legislation. The beauty of the word “co-development” is that it’s so undefined. It’s like consultation. You could have mere co-development or very substantial co-development. I think the intent is really to be involved in the co-drafting of legislation. The experience at the level of federal engagement has been that it has been very impoverished and ad hoc.
The government itself has yet to really invest in a substantive shift of the status quo. One of the things about UNDRIP implementation is that it requires you to challenge the status quo. So far, I have not seen any indication of that substantive change.
If you compare that to what has happened in British Columbia, we initially experienced the same defence of the status quo but we moved four or five years beyond that. Now, there has been really substantive change. We are very much involved in the co‑development of legislation from its very infancy, even when it’s just at a conceptual stage, and are very involved in the co‑development of action plan items and additional items.
When I compare the two, the contrast is very stark.
The Chair: Thank you, Mr. Alexander. Grand Chief Merrick, do you have any comments?
Ms. Merrick: I just want to go back to the treaty relationship on our treaties to reaffirm pre-1975 treaty relationships based on the principles of mutual respect, self-determination and the nation-to-nation relationship — engaged treaty nations in co‑developing approaches, including reconvening treaty councils if nations wish to do so.
So for the renewal and honourable implementation of pre-1975 treaties and treaty relationships, including a shared vision to guide actions and a common understanding of the spirit and intent of pre-1975 treaties — so treaty implementation has never gone away. Our elders and ancestors have always ensured that we don’t forget our treaty relationship. Thank you.
The Chair: Thank you, Grand Chief. Ms. Makokis?
Ms. Makokis: I’ll make a few brief comments about the importance of education in this piece in moving beyond the status quo and the role that education will play in educating government, lawyers, future lawyers and law students to be able to understand what the declaration is from an international standard and what our people understood it to be when they were negotiating the original pieces of it before it went to the UN General Assembly.
That is really important because if we’re going to move beyond the status quo in terms of the application and implementation of the legislation as it gets applied and argued before the courts, the education piece of this is critical to advancing a more nuanced, forward-thinking way of how we understand what the rights are from how they were understood when this was being negotiated originally.
The Chair: Thank you, Ms. Makokis.
Senator Sorensen: I’ll start with a question for Mr. Alexander. Good morning to British Columbia. It’s early morning in British Columbia. Thank you for joining us.
I’m looking at a couple of comments from your bio with respect to you supporting clients in emerging government-to-government negotiations in mining, oil and gas, forestry, pipelines and run-of-the-river and hydro projects. How has the United Nations Declaration on the Rights of Indigenous Peoples Act impacted the process of seeking approval for a resource development project in Canada or, at this point, has it?
Mr. Alexander: You can answer that question two different ways. With industry and proponents, there has been a shift. I think there already was a degree of acceptance that consent would create greater certainty. Particularly in the British Columbia context, because as you may be aware, senator, there was a very scary statement set in the Tsilhqot’in case where the court hypothesized that if at some point a project was approved and later it was found that Aboriginal title was established and consent was not obtained at that point, that the original approvals could be upended, essentially. That caused, of course, a lot of concern. What that caused — now almost a decade ago — was a shift within industry and proponents to move towards wanting to obtain consent in the impact and benefit agreements they were negotiating.
In many respects, the industry has moved — as they can because they are very project specific as opposed to the government — to wanting to negotiate agreements that are also UNDRIP compliant. It’s actually for a really smart and simple reason, which is that they would rather negotiate agreements on a bilateral basis with First Nations and be able to determine what the terms of free, prior and informed consent in their particular project might be versus having it imposed upon them by the Crown. I think in both the B.C. provincial and the federal context, we have seen very little development, so we do not know what that might mean if the regulatory framework starts down that same path.
The area for the greatest priority will probably be in government-to-government agreements as opposed to substantial statutory frameworks. It’s almost always the case that contract law moves faster than statutory law, so it might actually be in the government-to-government negotiations where we might see greater progress in being able to tailor what a consent framework looks like for a particular project. I think that both proponents are moving faster, and I think the best way forward initially is on a government-to-government basis.
In British Columbia, there is a wide variety of specialized government-to-government agreements, as you are likely aware. There are very specific agreement frameworks for forestry, different ones for mining, another type of framework —
Senator Sorensen: I would like to get a question in to Ms. Makokis, if I could. Thank you, though. It is nice to hear that industry is paying attention.
Ms. Makokis, looking at some of your work in terms of teaching Indigenous studies and Indigenous law, I’m really interested in how the Canadian legal system can better incorporate Indigenous laws and legal traditions and whether it’s a philosophical answer or if it’s something — it would be interesting to know what you talk about in the work you do.
Ms. Makokis: Thank you for the question, senator. In the work that I do as a professor teaching future lawyers — law students at Windsor law — we have a course specifically designed and called Indigenous Legal Orders. We have professors that teach Anishinaabe, Haudenosaunee and nehiyaw laws. We teach from the perspective within our own people’s laws and legal orders to students that would probably have never been exposed to those areas of law. We also teach them about how to use various arguments, if they are going to court as future lawyers, and how you would present or bring in an argument using an Indigenous law.
I’m so big on education, and I think that this is a huge opportunity for Canadians, generally, through the mandates created, either through the Truth and Reconciliation Commission, or TRC, or through UNDA. This is where my hope lies — through the mass education of people and seeing the change further down the line.
From the time students start at the beginning of the semester until the end, their life changes in terms of how they see Indigenous legal issues and how they have perceived Indigenous issues between the Crown and Indigenous peoples generally. They are transformed. They go on to be our best allies and advocates within the legal system.
If we’re going to be talking about implementation, my focus is on beefing up the education piece within the action plan because that is, I think, where we will see the most gain.
Senator Sorensen: Thank you very much.
Senator Coyle: Thank you to all of the witnesses. This is a very interesting discussion. I’ll try to get my questions out quickly.
Grand Chief Merrick, you gave us such a detailed presentation. I look forward to actually reviewing the transcripts. One of the points that you made was about the uneven financial support that is in place from various departments. I believe you mentioned the issue particularly around First Nations citizenship and how that is such a centrally important part of the implementation of UNDRIP, and that there is either inadequate or non-existent resources to support that. Could you delve deeper into that for us, if I heard you correctly?
Ms. Merrick: Yes, that was correct. I made reference to that whole process because as a First Nation people under the Indian Act and what was to determine citizenship, the Métis were given the rights and they were funded through the work of citizenship with the Métis. They didn’t have to go through any other process like how we go through our processes in determining our people. That was one of the things that we saw, and we didn’t think that it was something that should have happened.
We’re subject to the Indian Act, we realize that, but Canada’s not even funding CIRNAC to reform that work. We want to ensure that we are able to create our own citizenship laws within our First Nations.
Senator Coyle: Thank you very much. I can see how that would be absolutely fundamental to everything else that you want to do.
Ms. Merrick: Yes.
Senator Coyle: Mr. Alexander, you gave a very interesting presentation in that absolute essential connection between the two arms as you have identified them, the governance arm and the economic arm, and how if you have one of those arms tied behind your back, the other is not going to work either. That was very interesting and helpful.
You mentioned that you have a unique situation in B.C. in terms of Canada, where you have the B.C. UNDRIP moving ahead, it was earlier and it’s further developed in terms of implementation than the federal relationship.
You have talked about the big contrast. Are there some lessons from the B.C. implementation that would be helpful to this conversation right now about the implementation of the federal UNDRIP relationship?
Mr. Alexander: Thank you very much, senator. One of the things we shared very early on with the Department of Justice as they developed the legislation and also during the UNDA Action Plan is there were these lessons to be learned. That was one of the things that B.C. First Nations particularly wanted to share.
One of the areas particularly that is in reference to even the previous question is the development of what we call the interim legislative process, which is a fairly coherent approach to how legislation should be developed so that it may be made consistent with UNDRIP, which, of course, as you know, is one of the requirements of the act.
In British Columbia, similarly to what we are experiencing at the federal level, we initially experienced a very ad hoc, ministry-by-ministry, inconsistent approach and a lack of education across the bureaucracy. There needed to be education appropriately across the bureaucracy. There needed to be clear and coherent direction from the political masters to the appropriate deputies that this was something that was going to require significant change. Of course, there needed to be substantial resources, but one of the things that really helps guide us is that we have a public-facing document that was co‑developed with the First Nations Leadership Council called the interim legislative process that maps out how right holders can and should participate in co-development of legislation.
That is something that still remains fairly absent at the federal level, even though they have access to that public-facing document; there hasn’t been an embracing of a significant change. Maybe, at its most fundamental, there is a reluctance to that dramatic of a change in embracing UNDRIP implementation at the federal level.
Senator Coyle: Thank you. It could be very useful for us to have a look at that document to see what the applicability would be to the federal situation. Otherwise, it sounds like we’re going to spin some wheels here for quite some time if we don’t get that very fundamental process that has to be compliant with the principles of UNDRIP, as you say.
I’ll ask my question quickly, but you may need to put your answer in writing if you don’t have time, Ms. Makokis. Thank you for your presentation.
You mentioned a couple of levels of concern. One was concern that results from the international meetings that you talked about were not going to be honoured, and the other was alarm bells in I believe it was Alberta and in the Northwest Territories you were referring to about the UNDRIP legislation as well as the Action Plan. If there is anything specific you could highlight in more detail of what those alarm bells are or were, and what the concerns were in terms of honouring the results of those international meetings, I would really appreciate it if you could provide those to our committee. You probably don’t have time for the answer right now.
Ms. Makokis: Thank you, senator. I can provide it in writing or I could quickly speak to the issue of domesticating international standards in law under federal legislation. That was it.
The Chair: If you can do it very quickly, Ms. Makokis, that would be great.
Ms. Makokis: As someone who participated in these meetings and received these international documents within international caucuses, there has always been the concern of the domestication of international treaties and the international standards when they become federal law, and that is the biggest issue I see with this.
The nature of the articles within the declaration gets reduced and minimized through the federal and provincial legislative processes. I can explain better in a written response, but just generally, at a high level, it is the domestication of international rights.
Senator Coyle: Thank you very much.
Senator Prosper: Thank you to the witnesses. I want to follow up on a couple of Senator Coyle’s questions here. I want to go to Mr. Alexander first and then to Grand Chief Merrick.
When I was listening to your testimony, I found it very instructive, Mr. Alexander, that you provided a comparative with respect to what has taken place provincially and some of the lack of direction, lack of commitment and lack of funding that was exhibited on the federal side of things, and you outlined some of the positive provincial approaches, like early engagement in provincial law at the front end.
You also mentioned the First Nation perspective of oversaturation, that there is a reciprocal duty on First Nations and how that could be exhibited as a considerable weight in the absence of funding and capacity. I’m hoping you can extend upon that.
My second question goes to Grand Chief Merrick. Again, Senator Coyle delved into the subject of citizenship. You mentioned that a number of times. I think Senator Coyle’s question went to along the lines of funding and capacity development in that regard. It was stressed on a number of occasions by yourself. Can you highlight for purposes of the committee the significance of the development of a citizenship code, what that in essence means for your First Nations within the AMC?
Mr. Alexander: Thank you, Senator Prosper. Happy to see you in your not-so-new position, but happy to see you again.
It’s interesting. The two subject matters very much come together. In B.C., in all the assemblies, we heard from a wide variety of First Nations about this issue of oversaturation where the duty to consult was marching forward, as it does, the consultation referrals were already building and the capacity to respond to those referrals varies from nation to nation.
Simultaneously, now there is a really significant opportunity to start legal reform, and we heard from many First Nations that this was causing saturation, and so did the provincial government. So the provincial government’s response to that was to create a $200 million legacy fund which they placed in the New Relationship Trust. Now First Nations in British Columbia can access I think it’s about $1.4 million over three years to allow them to engage expert advice and essentially gain the resources that they need to build internally to be able to engage in the wide variety of Declaration on the Rights of Indigenous Peoples Act, or DRIPA, implementation. That’s what we call our legislation.
That same information was similarly shared as a lesson learned to the federal government. In truth, it’s really just a lack of funding. They know there is a necessity for funding. They can appreciate with the 700 plus First Nations in Canada, in the Métis communities and Inuit communities that engaging right holders would need a substantial fund, but really it is literally an impoverished approach in the sense that there is not sufficient funding provided. You can see what the solution would be, but either there isn’t the financial capacity or it’s not a financial priority to establish a similar federal fund. Because there is so much diversity within a particular First Nation and such a wide geographic area, they have almost seemed stifled with the solution on how to appropriately engage and create a funding source that First Nations as right holders, regional groups and the national level can engage. That stifling has almost created inactivity or just a poor funding approach.
But it is also just not a priority of government, at least that’s the general sense that there is not a significant investment being placed on what is clearly a needed solution.
Senator Prosper: Thank you. Grand Chief, if you can offer anything with respect to jurisdiction over citizenship, I would appreciate it.
Ms. Merrick: [Indigenous language spoken]
Thank you for the question. Our people have always been rights holders in terms of our treaties, in terms of designation and whatnot. In terms of citizenship and the recognition of those treaty rights in terms of citizenship, we based our relationships on wahkotowin which is in relation to your family, in relation to your nation, in relation to that.
But with the colonial system that we have in place now, it eliminates our people at a very fast pace. That’s where it comes down to the 6(1) and 6(2) definitions, and eventually you won’t have treaty people in this country if that continues. We need to be able to determine our own citizenship laws within our own nations so that we don’t have to go through the Indian Act.
I go back to the Métis in terms of how they determine their citizens. Every step of the way they were funded to be able to do that, so we should get the same privilege as treaty people.
Senator Prosper: Thank you, Grand Chief.
Ms. Merrick: Thanks for the question.
The Chair: Thank you, Grand Chief and thank you, Senator Prosper.
Senator Greenwood: Good morning, everyone, and thank you for being here today. It’s been really interesting. I’ve been taking lots of notes. I know we don’t have much time, I have the last 30 seconds.
My question is for Ms. Makokis. I’m very interested in reading your paper around the declaration as an international instrument and its domestication. You also talked about education, which is also something near and dear to my heart. I wonder if in these last few seconds that we have together if there are some elements of education that you think would be critical for others to know. I would just like to give you that opportunity to share some of that thinking and some of the elements that you believe would be really important for others to know.
Ms. Makokis: Thank you, Senator Greenwood, for the question. As an educator and professor, in the work that I do not only teaching within a law school but also teaching to governments and industry, it’s significant to teach them about the treaty and the treaty relationship because for us as treaty people, it is the core of the relationship that we have with the Crown.
Most often what I see is the public school system teaches it from the position that the treaties are something of the past, and they are not. They are alive. They continue into perpetuity, as long as the sun shines, the grass grows and the waters flow. We need people to understand that treaties are enduring and forever. When they understand the treaties from our perspective, it changes people’s understanding of how they relate to the land that they live, work and play on; the responsibilities and obligations they have as a treaty beneficiary or partner on the other side. It just changes the nature of how they relate to Indigenous peoples generally. They have much more respect. They also recognize that when we entered into these treaties, we did so with our own laws and legal orders, and there comes another layer of understanding.
In the work that I do, I also do a lot of treaty education. When I do that, I can see the changes in people after they hear about our side and our perspective of that.
Senator Greenwood: Thank you.
The Chair: Thank you, Senator Greenwood. Ms. Makokis, I will go to you for the last question, but if you could provide the answer in writing due to time constraints, I would really appreciate that.
You touched on some items in the Action Plan that may off‑load the Crown’s responsibility, for example, by Shared Priority 27 of the Service Transfer Policy, which proposes to transfer delivery of federal programs and services to Indigenous governments. Would you provide more details about the problem you would foresee with this?
Ms. Makokis: Thank you for the question, Mr. Chair.
In my work as an advisor, I also look at agreements that come through. Some of the things that I’m noticing is the federal government is off-loading funding agreements to organizations, and then First Nations enter into funding agreements with the organization. Eventually, the federal government will likely cut off the relationship or the tie from the feds to the First Nation.
I see a potential issue there where there would be a transfer of liability and the fiduciary obligation from the federal Crown onto other service deliverers. That’s why I talked about the white paper because in the white paper it talks about off-loading jurisdiction, roles and responsibilities onto another service deliverer, and that’s what I’m referring to when I mention the concerns that I have around that.
The Chair: Thank you very much for that. The time for this panel is complete. I wish to again thank our witnesses for joining us today. If you do wish to make any subsequent submissions, please feel free to do so. Send them to Ms. Mugny, our clerk, within seven days. She will be more than happy to receive them.
(The committee continued in camera.)