THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES
EVIDENCE
OTTAWA, Tuesday, October 8, 2024
The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 9:05 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.
Senator Brian Francis (Chair) in the chair.
[English]
The Chair: Honourable senators, I declare the meeting in session. Before we begin, I would like to ask all senators and other in-person participants to consult the cards on the table for guidelines to prevent audio feedback incidents.
Please make sure to keep your earpiece away from all microphones at all times. When you are not using your earpiece, place it face down, on the sticker placed on the table for this purpose.
Thank you all for your cooperation.
I would like to begin by acknowledging that the land on which we gather is on the traditional, ancestral and unceded territory of the Anishinaabe Algonquin Nation and is now home to many other First Nations, Métis, and Inuit Peoples from across Turtle Island.
I am Mi’kmaw Senator Brian Francis from Epekwitk, also known as Prince Edward Island, and I am the chair of the Committee on Indigenous Peoples.
I will now ask committee members in attendance to introduce themselves.
Senator Arnot: Senator David Arnot, from Saskatchewan.
Senator McNair: John McNair, New Brunswick.
Senator Prosper: Paul Prosper, Nova Scotia, land of the Mi’kma’ki.
Senator Boniface: Gwen Boniface, Ontario.
Senator Greenwood: Margo Greenwood, British Columbia, originally from Treaty 6 territory.
Senator Coyle: Mary Coyle, Antigonish, Nova Scotia, Mi’kma’ki.
The Chair: Thank you, everyone. Today we continue to examine the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act, 2021, also known as UNDRIP, by Canada and First Nations, Inuit and Métis peoples. The committee is hearing from witnesses to further refine its study topic.
With that, I would now like to introduce our first witness, the Honourable Jody Wilson-Raybould, P.C., President of JWR Business Group LTD, and former Minister of Justice and Attorney General of Canada. Thank you for joining us today, Jody, welcome.
Our witness will provide opening remarks of approximately 10 minutes, which will be followed by a question-and-answer session with senators.
I will now invite Honourable Wilson-Raybould to give her opening remarks.
Honourable Jody Wilson-Raybould, P.C., President, JWR Business Group LTD, and former Minister of Justice and Attorney General of Canada, as an individual: Thank you, senator. Good morning, honourable senators. Thank you for inviting me here today to provide some observations on the implementation of the United Nations declaration in Canada and, specifically, with respect to the United Nations Declaration on the Rights of Indigenous Peoples Act, or UNDA.
This is certainly a topic that I have spoken publicly about for many years, sometimes with some controversy, including when I was the Minister of Justice and Attorney General of Canada.
To be direct, my view, which is already a matter of public record, is that the United Nations Declaration on the Rights of Indigenous Peoples Act and, similarly, the Declaration on the Rights of Indigenous Peoples Act, also known as DRIPA, in British Columbia are important legislation and an important step forward. At the same time, this legislation, in my view, is missing fundamental elements if our goal is to advance public, transparent, practical and effective shifts to the recognition and implementation of Indigenous people’s rights.
Let me explain briefly.
First, why is the legislation important and why is it an important step forward?
The story of colonization of Indigenous peoples in Canada can be told in many ways, through many lenses. One of those is as a legal story. Legislation and, more broadly, the legal and justice system, have been one of the primary tools, or weapons, one might say, of colonization. Of course, one need look no further than the Constitution Act, 1867 and the Indian Act.
When the Constitution was formed — without Indigenous peoples being asked to participate in any way — we were treated as a topic, a subject matter, of bartering between the newly formed federal government and the provinces. We — Indigenous peoples — landed in section 91(24) — “Indians and Lands reserved for Indians.” Our peoples were treated as a topic of federal power. And, of course, the Indian Act was the manifestation of that power — legislation that was the foundation of so many of the forms of violence against Indigenous peoples, from the residential school system to the banning of systems of governance, to alienation and segregation from our territories and ancestral lands, to the making it a crime for Indigenous peoples to raise matters of rights and so on.
This treatment of Indigenous peoples as merely a topic of federal power was such a fundamentally dehumanizing, racist and destructive thing. It was, as it is often called, an expression of denial — a denial that we existed as human peoples and communities, with governments and laws, lands and territories and rights.
This denial was not only expressed in law through the Indian Act. Denial became the legal tradition of Canada with respect to Indigenous peoples. So, for example, throughout Canada’s history, all land and resource statutes, federally and provincially, have been written as if no Indigenous rights to those lands and resources exist. Or, as another example, basic traditions of human rights protections — whether mobility, franchise, access to lawyers and fairness in the administration of justice — has in various ways and at various times excluded Indigenous peoples.
Let me tell you, this pernicious tradition of denial is not just a thing of the past. It remains predominant to this day. Indeed, until 2019 with the passage of the Declaration on the Rights of Indigenous Peoples Act, also known as DRIPA, in British Columbia, there effectively was no legislation that explicitly affirmed and upheld the rights of Indigenous peoples. Imagine that — a country over 150 years old and the Indian Act still being the primary legislative expression of what it means to be Indigenous in Canada.
Well, since 2019, we have seen a few other statutes that have explicitly affirmed and upheld Indigenous rights, including, of course, UNDA. So that is important. It is a break from the legal tradition of denial. But we should also be clear that while DRIPA in British Columbia, and UNDA from Canada, was something new — in that it was a break from the racist legal tradition of denial — it was also something old.
The UN declaration is nothing new. It is, in fact, quite old — and I do not mean old in that on September 13, 2024, the seventeenth anniversary of the declaration — I do not mean old in that sense. I mean it is nothing new in terms of the substance of it.
The United Nations declaration reflects norms and standards that have been part of the tradition of democracy, rights and freedoms internationally and domestically here in Canada for many decades — indeed, many generations.
After the horrors of world wars and other atrocities, the protection and entrenchment of human rights became a matter of global concern. One of the central results of this was the development of the Universal Declaration of Human Rights in 1948.
Canadians were proudly involved in the development of the universal declaration, and the declaration inspired and informed Canada’s human rights traditions and laws, including the Canadian Human Rights Act and our Canadian Charter of Rights and Freedoms. In other words, the universal declaration is celebrated, reflected and honoured in Canada’s long tradition of human rights protection and laws, which are things that Canadians often like to celebrate about our country.
Well, the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, is wholly within and in no way outside of that long tradition. The UNDRIP was developed to express the specific standards of the universal declaration in the specific context of Indigenous peoples around the world.
Why was this needed? Well, for the simple reason that in many places — including here in Canada — the basic human rights standards of the universal declaration were clearly not being implemented or respected in relation to Indigenous peoples. So states, including Canada, and Indigenous peoples sat down and started deliberating about how to express with more clarity what the standards of the universal declaration mean in the context of the discrimination and challenges faced by Indigenous peoples.
What they came up with after decades-long dialogue was the UN declaration. It was completed, endorsed and adopted in 2007 and finally and fully in Canada in 2016.
This is all to say that what DRIPA and UNDA do is to make a choice, and to be honest, a choice that should not be that hard in 2024. The choice that was made was to stop upholding the long and destructive Canadian legal tradition of denial, and to start upholding, in relation to Indigenous peoples, the long and constructive Canadian legal tradition of human rights recognition.
Now look, this should be the easiest of choices, should it not? This is why I have little time or tolerance for voices who speak of UNDRIP as something new, or try to paint it as something scary, or to be feared — or as some politicians do, to use loose rhetoric of repealing DRIPA or UNDRIP.
Such sentiments need to be called out for what they are. In my view, they are little more than a plea — whether with awareness or not — to hang on to the legal tradition of denial born at Confederation, rooted in the Indian Act; and at the same time suggesting that the long-standing tradition of human rights protections in Canada that extend to everybody should apparently still not extend to Indigenous peoples.
So, yes, UNDA is important, and I applaud it. But, as I stated at the beginning, which I have repeated since at least 2016, it is effectively incomplete. We need to understand this. When I, as Minister of Justice, announced in 2017 the government’s intention to support Bill C-262 — effectively the precursor to UNDA with almost identical provisions — I reiterated, as I had stated previously, that such legislation alone would not do what is needed, it would not meet people’s aspirations and would not achieve tangible shifts in the lives and well-being of Indigenous peoples on the ground and in communities as is needed.
The basic reason for this is quite straightforward. If we are to shift from a tradition of denial and the reality of the Indian Act, to the recognition and implementation of Indigenous rights, what is needed are practical and tangible mechanisms for making this transition. This includes, yes, recognizing UNDRIP in Canadian law, but also supporting First Nations to move out from under the Indian Act; supporting nation and government rebuilding; re‑establishing of protocols and relations between peoples and nations, and creating new forms of dispute resolution so that disputes between the Crown and Indigenous peoples, as well as industry third parties, can be resolved efficiently, effectively and in more responsive ways than through the court system; and that there is binding standards for public entities and the public service in their dealings with Indigenous peoples — essentially, an overarching comprehensive framework for the recognition and implementation of Indigenous peoples’ rights — so there is consistency, transparency and coherence of approach. This is what the current government, through the Prime Minister, committed to do on February 14, 2018, on the floor of the House of Commons. We continue to wait.
This is not just my view. To be clear, many of these changes reflect solutions that have long been identified and known to us. In various forms, they were present in, for example, the recommendations of the Royal Commission on Aboriginal Peoples back in 1996, and they have been reiterated in other reports. They reflect what has been brought forward by Indigenous peoples over generations. As I always say, and will always repeat, we know what the solutions are. The United Nations Declaration on the Rights of Indigenous Peoples Act is only a tiny bit of that solution, and having it exist alone, in isolation, I fear has caused confusion and fear among some and concern among others. Why? Because it lacks the practical and tangible pathways, supports, processes and mechanisms because it stands largely alone in a sea of ongoing legislative denial.
Those who have worked and waited for real change for far too long are increasingly voicing that they fail to see any practical change on the ground. To those who are already skeptical or confused about the importance of addressing the legacy of colonialism and upholding Indigenous rights, the lack of clarity about what tangibly is shifting and how and what that would look like on the ground creates a space for potential conflict and contention.
Senators, I will end with a simple message, which I take or steal from the late, great Chief Joe Mathias, which he shared during the constitutional conferences on First Nations self‑government back in the 1980s. He said to “behold the turtle . . . he moves forward when he sticks his neck out.”
The United Nations Declaration on the Rights of Indigenous Peoples Act is sticking out the neck, but only in a small way, and because it is small, some, on all sides and from many vantage points, are failing to see it for what it is. By sticking out the neck further, in a clearer way, so that all can see the direction it is pointing and what the neck looks like when it is pointing outward more fully, we will all be better off.
Thank you for listening, senators. I look forward to our discussion.
The Chair: Thank you, Ms. Wilson-Raybould, for your remarks.
We will now open the floor to questions from senators. I will start by asking the first question. You talked about moving away from the Indian Act. Could you talk about how you envision that happening, given that it is so entrenched in our lives as Indigenous peoples?
Ms. Wilson-Raybould: Thank you, senator, for the question. It is an important one, and one that I’ve been hearing for years and years, as I know you have as well. I remember when I became a regional chief for British Columbia in 2009, the then national chief had proposed that we get rid of the Indian Act in five years. That was in 2009.
Removing ourselves from the Indian Act is a challenge that is different and will manifest itself in different ways depending on the communities. I am grateful to say that there are 25-plus Indigenous nations in this country who have done just that and are self-governing having removed themselves from the Indian Act. It will take place in terms of the priorities of each individual community and where they are in that continuum of governance reform.
The challenge we have in Canada is that there is no practical mechanism short of going to court or negotiating in what I like to call “interminable negotiations” with other governments. There is no practical mechanism for Indigenous communities in this country to remove themselves from the Indian Act when they are ready, willing and able to do so. This is part of recognition framework that I was talking about, senator, and it has been proposed by many individuals beyond me. We need to develop that practical mechanism and create space for Indigenous nations to rebuild when they are able and willing to do so and not be dependent on the federal government being the gatekeeper to their liberation.
The Chair: Thank you very much for that.
Senator Arnot: Thank you, Ms. Wilson-Raybould, for your advice here. I guess you are saying that the turtle’s neck is out, but the turtle hasn’t taken a step yet. Given your extensive experience on Indigenous governance and advocacy for Indigenous self-determination, how do you see, specifically, that this larger framework would be created with recognition and practical steps? What would that framework look like? How would you recommend that it be created?
Second, you argued that adopting UNDRIP into Canadian law will not solve systemic issues without deeper reforms. I would like to give you an opportunity to amplify your vision of what those deeper reforms should look like and how it would work to the advantage of all people in Canada, specifically Indigenous people. You have the opportunity to amplify what you would like to see and how you would like to see it developed.
Ms. Wilson-Raybould: Thank you, senator, for the questions. We could talk for days, certainly, about the way forward.
You started off by saying the turtle’s neck is out a little way. My remarks to you at the outset were not to say that there have not been steps forward. There have been some steps forward, and you honourable senators in this committee can look at the significant steps that have been taken by many Indigenous peoples and nations across the country to move forward in terms of governance reform.
You asked me a specific question about the framework and what specifically needs to be done, and I’m grateful for the opportunity to further articulate what I believe needs to be in the framework. I will underscore that this is not to be political but to point out that the framework has been articulated very clearly in the House of Commons in terms of this government expressing its desire to move forward with it.
What has been proposed, and what I and others continue to advocate for, is a broader comprehensive framework for the recognition and implementation of Indigenous peoples’ rights. I usually talk about it in terms of five steps. One of those steps, as I said, has been taken, which is UNDA, the federal legislation, and in British Columbia’s Declaration on the Rights of Indigenous Peoples Act, which are to bring the minimum standards for the survival, dignity and well-being of Indigenous peoples as articulated in the 46 articles of UNDRIP into Canadian and British Columbia law. This is a very important step.
The challenge with the action plan and all of the actions that are contained within it is that there is no underlying framework. There is no clear, practical foundation for the movement away from denial to the recognition of rights. The other steps that I hope would find their way into any report that you honourable senators are conducting around UNDRIP’s implementation are establishing legally binding standards or principles based on the recognition and implementation of treaties, title and rights for all public officials and institutions so that there is a clear foundation and a principled basis upon which we are proceeding. Another is the standards that bind the Crown to follow the self-determined paths that First Nations choose to remove themselves, as I was talking about previously, from the Indian Act to their own model of self-government with practical mechanisms and supports for that transition when the First Nation says that they are ready.
Third, establish new, effective and efficient mechanisms for a nation getting their land back or the resolution of disputes outside of the courts, as well as new Indigenous institutions that are independent from the federal government that, importantly, support the work of nation and government rebuilding.
Finally, the fifth step is establishing oversight and accountability mechanisms that are, again, independent of the federal government that have the responsibility to ensure the government is following through on the implementation of section 35 of the Constitution and of UNDRIP.
Senator, to your question regarding how this would be an advantage to Indigenous peoples and Canadians, the advantage to Indigenous people, which, in my view, is an advantage to Canadians writ large, is that we will be, as I’ve said, finishing the unfinished business of Confederation. Indigenous peoples, at their own pace and based on their own priorities, will be enabled to rebuild their nations and bring in their own legal norms, patterns and laws that will enable them to support their communities across a whole range of jurisdictions.
The rebuilding of Indigenous nations is certainly good for Indigenous nations, but it’s also good for Confederation. Having clarity and uncertainty over how Indigenous peoples, the proper titles and rights holders, are governing themselves and how they will interact with other governments in this country can only strengthen our cooperative federation.
Senator Boniface: Thank you very much, minister, for being here. Sorry, I’m just used to referring questions to ministers.
I’m interested in the justice portfolio perspective — you had some very interesting insights, obviously, from both outside and inside. How would you see the evolution of the justice system for Indigenous communities under the framework of UNDRIP?
Ms. Wilson-Raybould: Thank you, Senator Boniface. It’s been some time since I was a minister, but I appreciate that. I’m also very grateful for the opportunity I had as Minister of Justice and to engage with and conduct some of the important work that needed to be done in the justice realm, particularly when it comes to the reality of the over-representation of Indigenous peoples in the criminal justice system. I know you had experts in corrections appear before the committee, and they have spoken about a number of action items in the action plan. Whether in the report of the Truth and Reconciliation Commission, the MMIWG Calls for Justice or in the UN declaration, there are provisions, articles and recommendations specifically with respect to justice, and there have been actions taken.
I’m not exactly sure of the status of the action plan that the federal government is undertaking with First Nations and Indigenous peoples across the country, but here in British Columbia, the BC First Nations Justice Council has an action plan that has been adopted by Indigenous peoples as well as the provincial government. This action plan is being worked on with the federal government.
We need to come together and identify steps that can be taken. Certainly, having some ability and jurisdiction around the administration of justice and moving toward Indigenous courts and Indigenous communities is something that has happened.
I believe it’s fundamentally important to move toward and expand restorative justice measures that take into account the differing realities in Indigenous communities and enable Indigenous communities to care for and rehabilitate individuals who have come before the justice system in ways that support their traditional ways of being and rehabilitation.
Significant investments need to be made in expanding those measures. It’s been a long-standing concern — certainly something that I advocated for very strongly when I was the Minister of Justice. It’s not one of those sexy political issues, but it’s incredibly important for transforming the justice system — investing the dollars that are needed that show benefits in the years to come.
I am going on — and maybe I’m still a politician in talking too much — but the reality of over-representation in the criminal justice system is a symptom of the ongoing reality of the colonial legacy. We need to address the symptoms, certainly. The lack of housing, the reality of mental health and addiction issues — yes, the over-representation, the lack of Indigenous peoples seeing themselves in positions in the justice system — but, bottom line — and I always come back to this — is that foundational transformation in the laws, policies and practices that exist in this country, whether federally or provincially is needed. We need to change those existing laws, policies and practices and create space for Indigenous nations to be self-determining, which includes being self-governing, and enable Indigenous communities and Indigenous institutions, like the BC First Nations Justice Council and other organizations, to support First Nations and Indigenous ways of knowing, behaviours and laws to come to the forefront.
Senator Boniface: Thank you.
Senator Prosper: It’s an honour to see you again, Ms. Wilson-Raybould. Like many Indigenous people, I have looked to you as a role model and a strong advocate for all Indigenous people.
I want to get into a question — given your wealth of experience, certainly within this subject area — relating to the overarching honour of the Crown. As you know, many Indigenous peoples assert their legal rights, whether they be Aboriginal treaty rights or ones recognized within the constitutional framework of Canada. Often that plays out in litigation. We’re often up against the Crown, whether it’s the Crown in right of a specific province or Canada.
We often look to the Attorney General. They are there to protect constitutional rights, whether they exist provincially or federally.
The question I have for you is this: Where is the space for the protection of Indigenous constitutional rights, Aboriginal treaty rights and the rights to self-government? Is there a fundamental flaw here with respect to us often litigating against the Attorney General of Canada or the Attorney General of Nova Scotia? What mechanism should exist for the protection of Indigenous rights within the constitutional framework?
Ms. Wilson-Raybould: Thank you, senator, for the important question, and I like to see you sitting there as a senator. It’s fantastic, and I appreciate the advocacy that you have undertaken throughout your life.
Essentially, you are talking about the Constitution and what the mechanisms are for the protection of Indigenous peoples’ rights. I have to say we’ve come a fair distance in terms of where we were as Indigenous peoples prior to 1982 and the amendment to the Constitution that brought in section 35, which is recognizing and affirming Aboriginal and treaty rights.
Maybe I’ll answer your question in a sort of roundabout way. Imagine if, back in the early 1980s when section 35 came in and affirmed Aboriginal and treaty rights, we had treated section 35 in the same manner as a federal government and provinces and in the same manner as the governments treated the Charter of Rights and Freedoms. You would never imagine a government saying to an individual Canadian, “You do not have the right to freedom of expression or religion or mobility.” What the government did and continues to do is change laws, policies and the practices to ensure that rights and freedoms are upheld.
As you know, and as honourable senators know, the same was not the case for section 35 and Aboriginal and treaty rights. In fact, that long tradition of denial of Indigenous peoples’ rights that I talked about still exists today. Since we were enabled to hire lawyers and go to court to fight for our rights, Indigenous peoples have gone to court hundreds of times to seek to uphold their rights, and Indigenous peoples have been quite successful in court, to your point, fighting the imposition of federal laws and policies that sought to deny our rights. It’s alarming, but can you imagine if there was a different approach to section 35? We would be in a very different place as a country.
The Attorney General is supposed to be the defender and protector of our legal framework in this country. I believed when I was the Attorney General, and I believe now, that the Attorney General should take different approaches in terms of how they come at civil litigation with Indigenous peoples. So much so — and I know it’s still on the books — that the last action I took as the Attorney General was to release a directive on civil litigation. It was a directive to the lawyers at the Department of Justice to take a different approach to civil litigation with Indigenous peoples, one that upheld the honour of the Crown and sought to, as much as possible, remove these contentious issues around land and jurisdiction that have been in the courts since we were enabled to go to the courts, as I said, but have not sought to resolve the issues and bring them out in a way that there could be different discussions and approaches taken and not just these defences that are always put forward.
We need to continue to press for that. We have seen a lot of success in the courts in terms of courts disputing what some of the leaders in the provinces and the federal government have said since 1982, which is that section 35 is an empty box of rights, only to be filled up by the goodwill of the Crown or elected leaders. We, of course, as Indigenous peoples have disputed that and see section 35 as a full box of rights, so we come to this place, and this is where I began. We have made progress, and we need to be mindful of the progress that has been made. We all need to take different approaches to resolve these issues. We live in a cooperative federation, and Indigenous governments and nations are re-emerging with our own laws and legal norms.
We only need to look to the decision of the Supreme Court of Canada in the child welfare case to know that we need to take a different approach.
Yes, this is reflected in the directive that I issued to civil litigators in the Department of Justice, but more broadly than that and, more importantly, we need to look to the direction of the Supreme Court. But we know this as Indigenous peoples, and, to a large degree, other Canadians know this and are pushing governments to come to this place of having three different types of legal norms in this country, and they create a framework, as the Supreme Court said, for recognition. I think of it in the way that the Supreme Court talked about it, as the braiding of these different legal norms — legislation of non‑Indigenous governments, the federal government, provinces and territories, looking to provisions that are enacted by Parliament, et cetera, but also looking to Indigenous laws, ways of being and knowing that have enabled us to survive, and also looking to the international framework for reconciliation that was recognized in truth and reconciliation in the United Nations Declaration on the Rights of Indigenous Peoples Act. How do we, as much as we can — the courts are always going to be there — remove ourselves from the courts and together continue to braid that new reality of how we’re going to live together with different legal norms? But as the Supreme Court said, when we do that and take different approaches and stick our necks out, that braiding of the legal norms, and what I like to say —
The Chair: I’m sorry, Ms. Wilson-Raybould, we have two more senators who are looking to ask questions yet. We will go on now to Senator Coyle.
Senator Coyle: Thank you for your testimony and for your service to our country. We are honoured to have you with us today.
As we move in, hopefully, a more accelerated shift than what we’ve experienced to date from, as you have said, the expression of the denial of rights of Indigenous people to not just the expression but the actual recognition of rights, and we see the results of that in people’s lives in tangible ways. One of the key things will be oversight. You’ve mentioned an oversight body independent of government. As you know, there are various oversight bodies in the works.
Could you speak in a little more detail about how you would see that oversight body being constituted, how you would see it functioning, and how you see it both in terms of its accountability to Indigenous peoples in Canada and their nations as well as relating to the government at the national level and other levels, and Canadians in general? It is accountability both ways, to Indigenous people and to other Canadians.
Ms. Wilson-Raybould: Well, thank you for the question. In terms of oversight, moving from a denial approach to a recognition approach is new. This is important, and this is working and creating something together.
So, yes, there will need to be an oversight body, and I know this is expressed and considered in the Government of Canada’s action plan around accountability. Accountability is important when enabling an independent body — and there are various forms of shared governing bodies that exist in Canada — but that could be created for an oversight body that is independent of government and, certainly, of Indigenous peoples where there are individuals who are appointed to be on this oversight body and enabled through terms of reference to oversee disputes that arise, which will ultimately arise from a recognition-based approach where disputes arise between Indigenous communities or between Indigenous communities and non-Indigenous governments.
The structure of that will need to be discussed in detail and laid out in terms of how decisions are made and how decisions are brought to that oversight body. There are many examples of structures that can be looked at and are articulated in studies that have been sitting on the shelves in our offices dating back generations. It’s a really important question, and it’s the key to ensure that any independent oversight body around dispute resolution, accountability and ensuring that the mandate of the UNDA is moving forward will need to have the confidence of all the parties, Indigenous and non-Indigenous people.
Senator Coyle: Thank you.
Senator Greenwood: Thank you for being here, and again, thank you for all the work that you’ve done in your past and current roles for Canada.
My question is around the principles respecting the Government of Canada’s relationship with Indigenous peoples. I believe this was released when you were Minister of Justice and Attorney General in 2017. In that document, it says the principles are rooted in section 35 of the Constitution and, of course, the UNDRIP, and serve as the basis for federal engagement with Indigenous peoples and the ongoing work of rebuilding and reconciliation.
I would just like your thoughts on whether those principles have been properly implemented in its nation-to-nation relationship, or what could we do better? Or are we already doing it?
Ms. Wilson-Raybould: We can always be better, Senator Greenwood. Thank you for the question, and thank you for pointing out the 10 principles, which were certainly not without a challenge to bring forward and to release publicly, but also created some challenges and differing opinions between and among Indigenous peoples.
What can we do better? The 10 principles for the relationship or the interaction of the Government of Canada with respect to Indigenous peoples were, essentially, direction to the federal government in terms of their role, assisting to get their house in order and how they come to engage with Indigenous peoples. I know that these 10 principles are still on government websites and hang on the walls of government offices. I see them when I go to government offices, which is not very often. Perhaps we can all reread those principles and understand what those principles mean: The recognition of Indigenous peoples’ rights, upholding the honour of the Crown, understanding self‑determination and self-government, and the fundamental need for governments having the ability to raise revenues and financially support governments and economic development. These are all important principles that need to be in the back of mind.
Knowing the work that’s happening at some of the rights recognition tables and communities — in British Columbia in particular — that are pursuing standalone self-government agreements with the federal government, there are many public servants and negotiators who come to these tables who have those principles as a foundation and want to ensure the understanding of those principles rooted in the UN declaration. That is something that we should applaud. There are also people who are struggling with what those mean and what UNDRIP means and how we can translate those minimum standards into practical and meaningful benefits on the ground in communities, which is the litmus test.
We all need to continue to work on this and build a shared understanding of what recognition of rights actually means, and then put in place new pathways, opportunities and constructive arrangements that can be built between and among Indigenous peoples and non-Indigenous governments.
Senator Greenwood: Thank you.
Senator McNair: Thank you, Ms. Wilson-Raybould, as the other senators have said, for your past and ongoing work to make our country a better place.
You very eloquently talked about the historical legal tradition of denial and the need to transform the justice system. We have had numerous witnesses before this committee who have talked to us about the consultation and co-development process for legislation policies and programs and, essentially, the lack of engagement.
I’m curious to know, from your perspective, what your vision would be on how the Crown should properly engage its duty to consult in the legislative process with Indigenous peoples.
Ms. Wilson-Raybould: Thank you, Senator McNair, for the question. It’s a really important question. Indigenous peoples should be involved and have the opportunity to engage and be consulted on legislation that directly impacts their rights. There are various ways to engage Indigenous peoples from having them participate in the drafting of drafting instructions, for example, participating in terms of legislative drafting and ensuring the legislation as it’s being written is reflective of the intent or the goals that are ascribed in the drafting instructions. There are various ways and levels of engagement for Indigenous peoples to be involved in drafting federal, provincial or territorial legislation, and that’s really important.
I will say — and I’ve said this before — that consultation and accommodation is a fundamentally important reality that needs to be addressed, and there are various levels of it. Some governments, non-Indigenous governments — and to a certain degree Indigenous peoples — use consultation, accommodation and engaging as a reason to delay or to do nothing, to sit down and continue to talk about a particular issue without actually creating tangible action items, and this is a challenge. I saw this when I was in government. We need to continue to be aware of and involved in what other governments are doing when it affects and impacts our rights or our treaty rights.
At the same time, we need to continue to engage in our own work of creating laws and rebuilding. We need to find balance and not get mired down in endless consultation that just results in more consultation. This is a challenge. It’s a hard line to draw, but it’s one that needs to be drawn.
The child welfare legislation, Bill C-92, was started back when Jane Philpott was the Minister of Indigenous Services, and this was something that was, from the outset, co-drafted, so to speak. Indigenous peoples were involved from the outset, and it is a formidable piece of legislation that has created the space for Indigenous nations to exercise jurisdiction over child welfare. That’s important, but it was something that was started with Indigenous peoples’ involvement from the outset.
Senator McNair: Thank you.
Senator Arnot: I’m not sure there will be time to have this question answered.
The Chair: Ms. Wilson-Raybould can answer in writing, perhaps.
Senator Arnot: Ms. Wilson-Raybould, you talked about the establishment of an oversight body. I’m really interested in this issue, because I’d like to know your thoughts on how you hold the executive branch of the government to account. I think that’s a major stumbling block in the relationship and in resetting the relationship because the executive branch of government controls so much and needs to be more accountable.
One of the options, in my opinion, would be to have an independent officer of Parliament constituted to report directly to Canadians through Parliament, as opposed to any reports going directly to the executive branch of government. Some of the issues that this body could deal with, in my opinion, are research, education of the general public but also a real focus on dispute resolution in avoiding litigation, in other words, a mediated resolution between Indigenous peoples and the Crown. It would move completely away from litigation because that has not produced good results. It would focus much better on a positive, more constructive relationship.
Do you have some models that you would cite to aid in what you are really getting at — a deep-seated, deep-rooted method of compelling the executive branch to move faster and more effectively, pursuant to the honour of the Crown?
I realize you may not be able to answer that today, but anything that you could give us on this issue would be helpful.
Ms. Wilson-Raybould: Thank you, senator. Let me just be quick because I know your time is tight. It is a really important question, and I’m happy to speak further about this with you, senator, and to have further conversations. The challenge, as you have articulated, is holding the executive branch to account. I think this is a challenge in our system of government from its inception. There are various ways and mechanisms, but the effectiveness of those various ways and mechanisms are still challenged by the way our government works in terms of the executive branch and the shielding of where decisions are made.
Anyway, I will leave it there, but I’m happy to engage with you further on this question and provide some of those examples that do exist, however successful they are, but they can be models for your honourable committee to take into consideration.
Senator Arnot: Thank you very much.
The Chair: Ms. Wilson-Raybould, if you would like to put further testimony in writing, our clerk will follow up with you as necessary.
Ms. Wilson-Raybould: Thank you, senator. I thank all the honourable senators for the opportunity to come before your important committee. I applaud the important work you are doing with this study.
The Chair: The time for this panel is complete. Again, we thank the Honourable Ms. Wilson-Raybould for joining us so early in British Columbia time today. Again, if you wish to make any further submissions, feel free to submit them by email to our clerk, and he will be in touch with you.
(The committee adjourned.)