Thank you, Madam Chair.
In light of the nature of the subject, I should say a few words about me and my background. I'm a Michif person from Manitoba. I'm one of 12 children of a Métis trapper, fisherman, and carpenter. I was born in 1943. I've seen life in very different circumstances from what we live today. I am a retired professor of law, a practising lawyer, and I spent some 28 years, on and off, participating in deliberations in Geneva on the UN declaration.
I shall comment on three basic points today. First is the matter of interpreting the text of the declaration to apply it in Canada. I'm arguing against the formalistic approach. I will also argue the need for a rational and defensible federal recognition policy respecting the section 35 aboriginal peoples. Finally, I will suggest that the federal Royal Commission on Aboriginal Peoples, which reported in 1996, ought to be considered in designing the plan of action contemplated by Bill . That was a commission, I must disclose, of which I was a member.
First, on interpretation of the text I begin by emphasizing the important statements in the preamble of the bill that treaty and aboriginal rights as well as human rights are underlying values and principles of the Constitution of Canada. Therefore, we know that no foreign ideas are being introduced here. Canada's initial hesitancy and refusal to adopt the declaration was a rather shameful retreat from what a friend and colleague described as Canada's international image: that of a boy scout. The image had been garnered by Canada's efforts internationally since the days of Lester Pearson, as you will know. It seems to me that the adoption of Bill would help to wash the mud off the boy scout's face.
Pardon me for reading some of these notes verbatim. It helps me not to yield to my propensity to act as a didactic twit, given my long career in universities.
Opposition to adoption of the declaration seems to lean, at least in the public eye, upon reasons that flow from a formalistic approach to its interpretation. The exegete must not be seduced by a close scrutiny of each word in a text. Let us keep in mind that the text of the declaration exists in six official and very different languages. The interpretation of the declaration requires throwing away the looking glass of the formalist approach, which examines each word or phrase in isolation. In each case, we must consider the relevance of all the various human rights standards evident in the declaration, as well as elsewhere in international law, and apply them to Canadian circumstances.
A realist approach to interpretation will seek to apply to each domestic situation engaging state-indigenous relations the principles and the values behind the declaration, infused as they must be with the values of the indigenous peoples to which the facts draw attention. The question is about how the human rights standards, viewed holistically, ought to apply to the facts of each case. The issue is not so much what the declaration says, but what it means.
Canada must begin to accept the existence of power and authority residing in various sources. I emphasize that the purpose of the declaration is to guide state-indigenous relationships. Consequently, after some time, after Canada has adopted the declaration and implemented Bill , if we have focused upon the values and the purposes of the declaration, I believe that interpretative approach would allow us to say, “Well, we're getting along better now, aren't we?” Is that not the true object?
My second point is that Canada must adopt a defensible policy to recognize the aboriginal peoples, in section 35, and to perform its constitutional duty to make those rights effective.
Who are the aboriginal peoples? I have a book with that very title. Nobody on the indigenous side wanted to touch this question in Geneva. Some states were reluctant to accept the declaration without a definition. My point here is that adoption of the declaration will add little to the promotion of an understanding of the issues here, and it's a very vexed issue.
The most salient issues are reaction to the 1982 recognition of the rights of aboriginal peoples. Our problem lies in history, in Canada's traditional policy, which has been rooted in the Indian Act. Unilaterally, in a breach of treaties, this act purported to offer legal recognition to Indians. The problem is that the Indian is a ghost of the European imagination.
Canada's aboriginal peoples, the ones who have been here aboriginally or since the beginning, are the Mi'kmaq, the Tlingit, the Cree, notably the Haida, and so on. The descendants of some of these aboriginal peoples who have not been recognized in the act are trying to fit themselves into the category of section 35, aboriginal peoples.
The name that's been applied to these people historically has been non-status Indians. Their situation has been obscured by the large number of claims from self-identifying mixed-blood peoples across the country since the 1980s. As the courts have held, section 35 affirms rights that are based on historical state-indigenous relations of peoples, not upon personal antecedents. One of the points is that the consultations that have to occur under Bill must keep these points in mind.
My final point concerns the national action plan with consultations. A serious look should be given to the analyses and recommendations of the Royal Commission on Aboriginal Peoples. Even the recent Truth and Reconciliation Commission recommended a royal proclamation as a good symbolic start. The federal government itself reorganized its structures by splitting into two departments. I have a commentary in public media on that point.
A first ministers' conference is necessary, because the provinces must be engaged in order to make the Constitution and the treaties effective, and to make the Constitution legitimate. New institutions will have to be designed. I can't think of a more important one than the model of the lands and treaties tribunal. I really urge you to have a look at volume 2 of the RCAP's analysis, which leads to the recommendation of an aboriginal lands and treaties tribunal. The specific claims policy and its related policies really do not work, and they ought to be rejected.
I will yield to the time constraints, Madam Chair.
Good afternoon. It's an honour to speak with this committee as it studies Bill . I'd also like to acknowledge the Algonquin people on whose territory this meeting occurs.
My name is Dwight Newman. I'm a professor of law and Canada research chair in indigenous rights in constitutional and international law at the University of Saskatchewan.
I come here today with full respect for the very noble aspirations reflected by Bill and the passion and lifelong advocacy efforts of the member who has introduced it, the support for the bill by many civil society organizations, and the profound importance of Canada working to implement the aspirations reflected by United Nations Declaration on the Rights of Indigenous Peoples.
However, I am going to say something different than some of the other witnesses. I do come to say that I think Bill as presently drafted is framed in ways that have the potential to cause enormous unforeseeable consequences. It has a range of highly unpredictable legal effects due to two things: elements of uncertainty on the international norms referenced, and legislative drafting issues in the bill itself.
In the next few minutes I'll try to introduce some of those, although I'd also refer you to my written brief for further reference, particularly on some of the legislative drafting issues.
I would suggest that the range of possible implications of this bill is very wide, from courts giving it no effect at all on through to the courts giving it massive, unexpected effects that could inadvertently cause governance gaps, for example, by the potential implied repeal of existing statutes, on through to legal effects that could depend in complicated ways on the order in which different bills currently under consideration in Parliament are passed.
I'll explain some of that momentarily, but my ultimate question is whether it wouldn't be better for Parliament to determine what, more precisely, it's trying to do and to enact a clear bill to do exactly what it's trying to do.
In my few minutes, I'll make three main points: one related to the substantive content of UNDRIP, one related to the drafting issues in the bill, and then a third one, quickly suggesting the need for further analysis by other committees.
First, the substantive content of UNDRIP is itself subject to more debates than often realized, and a statute drawing upon the declaration is no less subject to uncertainties that arise from these ongoing debates. To offer just one prominent example, a number of articles of UNDRIP refer to the concept of free, prior, and informed consent, or FPIC. Some of those articles of the declaration refer to a requirement to have FPIC before taking certain steps, and others refer to consulting and co-operating in order to seek FPIC. The first special rapporteur after the declaration was adopted, Professor James Anaya, attributed significance to that difference and suggested that a spectrum of different duties arose in relation to different articles.
In the years since, in general terms, in international law scholarship, three main interpretations have emerged in relation to the declaration on FPIC. There's an ongoing, growing literature, but I might mention Mauro Barelli's chapter in the new Oxford commentary on UNDRIP, released this year, as a particularly helpful piece in outlining some of those concepts.
One interpretation reads the text more strictly and says that in some circumstances, the declaration says it's enough to seek FPIC in good faith without necessarily obtaining it. I've suggested that this is the implicit position that Canada's 10 principles document, issued last summer, took somewhat slyly, as I put it in an op-ed. It's arguably that interpretation, though, that is most consistent with the French-language version of UNDRIP, and with one possible interpretation of the English-language version.
A second interpretation says the FPIC requirement is really about the type of process required and that it's possible to move away from talking about consent itself as long as one has the right type of consensus-oriented process. That interpretation fits with the approach of many practitioners who are trying to work with FPIC in practical ways.
A third interpretation sees FPIC as grounding rights analogous to vetos, and that interpretation is, and continues to be, urged by many indigenous advocates. A prominent Canadian example would be found in articulations by the scholar Pam Palmater.
In the context of Bill , just which of these interpretations filters through from UNDRIP has drastically different legal consequences that matter. Not knowing that poses difficulties for everyone.
We've seen in the events of the past week around the Trans Mountain pipeline how legal uncertainty can affect the investment climate that can contribute to prosperity for both indigenous and non-indigenous Canadians, though obviously in the context of a project on which people have many different views.
My main point is that legal uncertainty doesn't help anyone, and this bill may draw Canadian law into new uncertainties coming from uncertainties around the interpretation of UNDRIP itself.
Second, the bill as presented has significant issues from a legislative drafting perspective, which I highlight at more length in my written submission, but I'll mention some of those briefly.
One, it uses a number of legal terms that have either no, or almost no, prior use in Canadian statutes, meaning that one's essentially gambling on how the courts might interpret those terms. That might render the whole bill merely symbolic at one end or it might lead to it having very significant effects, or anything in between.
Two, the different sections of the bill are subject to some tensions as to whether it requires immediate implementation, whether it requires implementation over a multi-decade period, or something in between. That could undermine clarity of meaning.
Three, the English and French versions of the bill may not line up in terms of their language. The French versions of terms from the English side are not the same as the French terms used for the same English terms in other pieces of legislation, again suggesting that there may be more drafting issues to be carefully considered.
Four, the way in which the bill may interact with other statutes or bills gives rise to some real complexities. I go through that in what is probably painful legal detail in the brief, but I suggest that if the courts were to give the bill substantial meaning, it could lead to the implied repeal of other statutes, or provisions of other statutes—maybe the Indian Act—overnight, in a manner that could lead to governance gaps and legal vacuums. That's not the way to abolish the Indian Act, which should of course be done but needs to be done in a clear way that doesn't generate problems in the process for indigenous communities who use its governance structures.
I also raise the prospect that because of the underlying legal principles on dealing with multiple statutes enacted by Parliament, the meanings of Bill , Bill , and Bill , if all passed, could end up being significantly different, depending on the order in which they're passed. With respect, there needs to be a coherent plan and clearer legislative drafting to address some of these issues.
Third, just very briefly, Bill has the potential and indeed the aim to affect a huge range of areas of Canadian law. Is this committee alone well placed to consider the effects on Canada's intellectual property regime of something like clause 3 in the bill? Is this committee alone well placed to consider the implications on various religious freedom contexts arising out of UNDRIP?
My written brief lists some of the very wide areas of policy-making that could be impacted if the bill is adopted, and indeed the bill hopes to affect. With respect, it's analogous to an omnibus bill, which I would suggest could warrant attention from almost every other committee of Parliament. I would urge that there be some kind of further consideration of those effects.
In conclusion, my overall view is that Bill warrants further study and careful analysis. The legislative drafting does not meet all of the standards that we would hope for in the best legislative drafting of a bill on behalf of indigenous peoples to support a better relationship between indigenous peoples and other Canadians. There are a range of highly unpredictable effects across almost every area of government policy, and those deserve study. There could well be amendments that could improve the bill, but they need to be developed with legislative drafting expertise of the sort that the justice department has but presumably hasn't provided enough of in support of this committee at this point.
The government has committed its support, but I would hope that we would see further tangible results in terms of the details of the bill, and that there would be that legislative drafting support so that the government's commitments to implementing UNDRIP are realized in the way that best fulfills those.
I urge that the committee call for more support for its work in examining this bill and not rest with brief statements that have been offered by the justice officials who have appeared before it thus far.
Thank you for your attention, and I'm happy to discuss matters further in questions.
I am Miles Richardson. I'm from the Haida Nation out on the west coast. I'm very pleased to be here today. I also acknowledge the Algonquin people, the Algonquin nation, on whose territory we're gathered today for this very important discussion.
I want to thank Romeo Saganash and all parliamentarians for this bill, which I believe is an important signpost on the road to righting the relationship between Canada as a nation-state and the indigenous people who were the first peoples of this place we all call home and we all call Canada today. In my view, it's high time that we did this properly.
We've been to this fork in the road before, and the fork in the road is very simple. There are two routes forward. Continue on the road we're on, the colonial road, the one of denial and assimilation through the instrument of the Indian Act and all those actions that the Truth and Reconciliation Commission has confirmed for all of us is the wrong path. We could continue on that path, I suppose. The choice of the other path is exactly the right path, in my view, which the Government of Canada has stated is the chosen path for Canada, and that's establishing a proper nation-to-nation relationship between each indigenous people and Canada as a state.
Bill is a signpost for that path which, in my view, is the correct path. In 1763, we began to face the same choice. In those days, first nations in this part of the country had a bit more leverage, I'd say, on Canada. You all know the story. Britain, in right of the crown, brought to Niagara Falls its commitment on a relationship with indigenous peoples, a relationship in which the crown committed that first nations would not be disrupted in our powers, in our authorities, in our interests, or in our jurisdictions without consent through a treaty with the crown itself.
That was the commitment that Britain brought to Niagara Falls. The 27 tribes, nations, on the east coast who then met with them brought their commitments, the Two Row Wampum and the Covenant Chain. The Haudenosaunee and others brought commitments that still would pass, I would say, the test of acceptance by first nations today. I've talked to my people. I've led a lot of our negotiations and our position in terms of being respected as a nation, and working with the constitutional framework of Canada is very much in line with the Two Row Wampum and those commitments that were made in Niagara Falls. I think those were honourable commitments that didn't last long.
Last year we celebrated 150 years of Canada, and very soon, as treaties 1 to 11 began being negotiated, Canada forgot those commitments and devolved to one of the first pieces of legislation of that Parliament, the Indian Act, and the policy of the denial of our humanity and of our fundamental human rights as indigenous people began. We get to the point we are today.
I would really appeal to all of you as parliamentarians to work together as the Government of Canada to implement this proper nation-to-nation relationship. Bill is a beginning, as my friend says. It can't be the end. This has to be a whole-of-government approach. There are going to be many discussions about the legislative implications and the relationship implications. The longer we put it off, the more uncertainty is going to breed uncertainty. We're going to face many more situations like we are on the west coast today, and that's just one of them. That's so predictable in this current climate.
As we go down this path of establishing a proper nation-to-nation relationship, we should be guided by the Truth and Reconciliation Commission's calls to action 43, 44, and 45, which you can all read.
Action 43 asks us to use UNDRIP and free, prior, and informed consent as the framework for reconciliation. That's a wise recommendation. When we look at nation-to-nation relationships, we shouldn't be turned off by the notion of consent. We're talking about respecting each other on an equal level, and I know my people, the Haida people, expect nothing less. We come to every table with that expectation and with the acceptance, as the wise judge said in the Delgamuukw case, I believe—in the Supreme Court of Canada anyway—that we're all here to stay and that we can make this constitutional framework, including section 35, which brings our indigenous law alongside the framework of Canadian law.
We can make this work, but it's going to take commitment. Because of all the nuances that we have to work through, the one thing it's going to take is political will. If you look at the courts in the last 25 years, there's a pretty impressive winning streak of first nations asserting our title, basically legitimizing the position our people have always taken, since contact.
What has changed? Very little. Do you know why? It's because Parliament and the legislatures have not done their jobs. Those laws amount to a hill of beans. You've been put in place as parliamentarians. Those laws, those decisions of the courts amount to a hill of beans if you don't enact them. Bill is another opportunity to do the right thing.
I was going to tell you a story about Sparrow and how that... I was on the B.C. claims task force, designing a treaty-making process for B.C. in the early nineties, while RCAP was holding its hearings. We had a notion in there. We had mutual recognition on a government-to-government basis, but as soon as first nations were recognized, we had to have interim measures to balance all the federal and provincial statutes that had never contemplated aboriginal title or right.
The Minister of Fisheries flew out to B.C. and met with the first nations. I remember that he said something like, “Look, I've got a problem. Six months ago, the Supreme Court of Canada handed down its decision in Sparrow. Indigenous people have fishing rights, and I need to do something about that. I want an interim measure.”
We started negotiating an interim measure, which turned into the aboriginal fisheries policy, which started out with really good intentions and very soon degenerated into the same old “we make the rules here in Ottawa; you stand up and get your portion”.
As we go forward again, Parliament failed a major opportunity and still the courts.... There was the Heiltsuk and the herring spawn decision in 1996, which was a pure victory. They have the right to sell. The Ahousaht decision a few years ago upheld their right to sell all the fish in their territories, and still they're sitting on the beach watching everybody else do it.
Now we see the Kinder Morgan pipeline being pushed through British Columbia. We're all going to learn something from this. You mark my words. We're going to learn a lot of lessons from this situation.
It's unfortunate. In the face of commitments to a proper nation-to-nation relationship and this relationship being the most important, the pronouncements of the last few days that “at all costs this pipeline's going through” to me are like a dog whistle to industry and to those who have kept marginalizing indigenous people all these years, signalling that indigenous, aboriginal rights still mean nothing in this country. If anything, they mean, “You indigenous people can have the scraps after we're done.” That's just not the way to move forward.
Bill is a signpost to the proper way. It's going to take a lot of effort, it's going to take a lot of commitment on all of our parts, but it's the right way to go.
I'm really interested in hearing Val Napoleon's presentation later, after we're done, on indigenous law. If we can't do this through negotiations, this is how indigenous people are going to have to achieve our justice: through implementing our laws and figuring it out as the dust settles, I imagine.
Thank you, Madam Chair. I look forward to any further discussion.
Thank you to our esteemed witnesses. It's really fabulous to have this panel before us.
I'm going to start by asking a question similar to Mr. Newman's and Mr. Richardson's, but from the flip side of the same coin. I'll ask you both to answer, one after the other, if you would.
Mr. Newman, I've read your brief. I appreciate your pointing to potential uncertainties, a series of prospective legal risks that you see may be associated with the language that has been advanced in Bill . Clearly the members on this side, as well as member Saganash and our government, are very supportive of this bill, but I think that anyone who's looking at this clear-sightedly recognizes that there is going to have to be both governmental treatment as well as judicial treatment of whatever bill is enacted.
Looking at this as it is presently drafted, in a reconciliatory spirit what would you be recommending—and I invite you to make further written submissions—if you see a path forward? What mechanisms could be put in place in the context of this legislation to mitigate some of the uncertainties and to enable better interaction between existing constitutional protections for indigenous peoples and their rights, as well as through this legislation?
To Mr. Richardson I put the same question, but the other way around. I understand that there are people who are reticent, who are uncertain when they see this legislation. They don't know where it's going to take us, but as you said, we've seen the decisions one after the other, and your nation has been a leader in this regard for many years. How can greater certainty and clarity be provided to those who are concerned about writing a law into the unknown, as it might be expressed?
I feel as though I'm asking you to reconcile your positions right here and now.
Before we get down into the legal weeds and all the nuances of who does what and according to what guidelines, we need to set the context at the higher level, the relationship level. TRC's recommendation 45 to jointly develop a modern version of the royal proclamation is the right starting point. We need to commit as a nation, as Canada, and as first nations, to the nation-to-nation relationship. That is a tough business. People pick up arms all over the world before they do that. I'm not pretending it's easy but that's where we have to start, and TRC points us directly to that.
We have the Royal Proclamation of 1763. We need to do that in a modern sense, and we need to do it in a way that the Government of Canada, the Parliament of Canada, can stand up and say, “The road we've been on is the wrong one, as the TRC has reminded us. This is the way forward, and we as a nation are committed to it.” That's what a modern royal commission says, and to articulate that policy and to do it in agreement with first nations so that these discussions are not just happening on Parliament Hill. Those discussions need to be happening in every town, at every kitchen table, in family discussions across this country. That's what we didn't do the last time, in the late 1700s. We need to. We are capable of having this discussion.
Remember, each first nation's going to be a crucial part of implementing this. I don't hold Haida rights individually. I can't exercise them with me or my family or even my community. Our nation is the legitimate rights and title holder, and those are collective decisions that need effective governance to exercise them.
We need to create space and have them build up, again in a modern context. As RCAP pointed out, there are about 60 indigenous nations in today's world. That modern royal proclamation would be the beginning. I don't think every little issue has to go to court, but if every little issue has to go to court we'll be at this forever.
We can set up joint tribunals to make sure that in getting agreement, in reaching consent, we have all the modern dispute resolution tools at our disposal to achieve that. It's a big task. It's a necessary task.
I think you again flagged some things that I have addressed, whether it's Bill , , or . This bill has significant implications for all those other three bills and that is something that I don't think we've perhaps looked at or addressed very well.
I do want to talk about Kinder Morgan because I think it's a pretty good example of some of the challenges that we have. I think a mining project is somewhat easy in terms of free, prior, and informed consent, identifying whose territory it's in and ensuring that the rights and titles are respected and acknowledged and the projects move forward.
You talked about concerns from your community, Mr. Richardson. I have chiefs who run down that pipeline and who are saying, “We took it to our community. They voted 85% for it. One-third of the pipeline is going through our territory.” We have communities along the whole pipeline route, and it's more than just the benefit agreements. They've taken it to their communities and 85% is not 100%, but it is significant.
What we have is rather like Canadians in general. We have a complexity of very strong feelings on this particular issue. How will government ever, if we have something like Bill , align all those important considerations? Again, I look at the communities, the Shuswap people who are predominantly in one area.
It's difficult. It's complicated. I know we were grappling with it until midnight last night. It's important and I worry about where we're going to end up in terms of making sure we respect rights while still being able to move forward with things that are important for everyone who lives in this country.
Maybe we'll hear from Mr. Newman and then Mr. Richardson.
As I indicated earlier, I will circulate my opening statement afterwards.
I'm hear to speak about my perspective and experience as a lawyer advocating for the recognition and implementation of aboriginal and treaty rights across the country and to offer some comments about the substance of a framework that gives teeth to the principles enunciated in UNDRIP.
To start, I believe the government's efforts to conclude a framework with new legislation and policy that enshrines the implementation of rights as the basis for all relations between first nations and the federal government is a critical step forward. Equally critical will be the contributions of first nation governments and their citizens to the development of any framework.
As we know, the recognition and implementation of aboriginal and treaty rights is the centrepiece of reconciliation. Section 35 of the Constitution Act recognizes and affirms these rights, but the substance of these rights has been left flapping in the winds of the courts. Very little has been done by Canadian governments in collaboration with their first nations' counterparts to implement any unifying and purposive recognition of these rights.
This failure allows historical injustices to compound. The recognition and implementation of a rights framework may provide the necessary protections of indigenous rights and ensure the promotion and realization of reconciliation.
I've looked at the articles and I've identified some related systemic challenges that I think will be addressed by the framework and that would achieve or lead to the achievement of harmonizing the laws of Canada with UNDRIP. This is just to give us some practical examples. Article 26 details indigenous peoples' rights to their lands, the development of their lands, and state protection of these lands. Article 28 provides that indigenous people have the right to redress by means that can include restitution, or when this is not possible, a just, fair, and equitable compensation for the lands and resources.
These articles are relevant to the long, ongoing effort to resolve hundreds of specific claims across the country. I previously provided a paper to a different iteration of this panel, titled “Exploring Access to Justice through Canada's Specific Claims Process”. That paper reviews features of the specific claims process that have emerged over the last 40-plus years, features of dispute resolution that have been employed to reconcile the relationships between the parties arising from these centuries' old, unresolved claims. It provides a detailed analysis and commentary on the dispute resolution process as it is today.
The desired outcome is central to the issue of redress. This begins with an unabashed legislative promotion of reconciliation among first nations, the crown, and non-indigenous populations and the resolution of these historical injustices.
Obstacles that currently exist, which may be resolved through legislated harmony with articles of UNDRIP include, for example, the elimination of the specific claims cap, which would allow for a fair and equitable redress to spill on to the specialized tribunal for the Specific Claims Tribunal.
The $150-million cap that currently exists is too low in light of development in the case law. It means that a lot of straightforward, historical grievances involving unlawful takings of land and treaty land entitlement now fall outside of the benefits of the tribunal process. By restricting claimants under the policy and before the tribunal to $150 million, you are, in effect, obstructing access to justice for countless first nations whose claims are now forced to enter the judicial process, which is filled with other challenges.
This brings us to our next obstacle, which I think flies in the face of the UNDRIP articles. These are the technical defences that are universally used by the crown in the superior courts. As we know, until 1951, first nations weren't able to retain legal counsel. Today, in every single piece of litigation before the superior courts you will find the crown defending on the basis of limitation periods, which of course, in effect, extinguish aboriginal and treaty rights by virtue of their operation. Limitation statutes should be amended to address section 35 cases. Arguably, UNDRIP principles could be a road map to justifying that.
My simple recommendation in this regard is to amend the legislation either to recognize the way you have it in the tribunal process that those limitations have no effect, or to amend them in another way that allows for a reasonable time period for first nations to file their claims. The idea that statutory limitation periods enacted by federal and provincial governments can bar reports to the courts is contradictory to the guarantee and entrenchment of aboriginal and treaty rights in section 35.
I'm going to jump to article 37 of UNDRIP, “Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors”.
The natural resource transfer agreement executed in 1930 transferred to Saskatchewan and two other prairie provinces, I believe, all minerals, lands, and natural resources, subject to certain conditions. One such condition was for the province to provide unoccupied crown lands to fulfill any treaty land entitlement obligations that remained left over vis-à-vis the treaties or that still existed vis-à-vis the treaties.
In 1992, in one of these provinces, the provincial and federal governments and 25 first nations signed the Saskatchewan Treaty Land Entitlement Framework Agreement. It established the framework to address outstanding TLE obligations. Part of that agreement was a path to implementing that obligation under the NRTA for those first nations that never received their entitlements or their full entitlements under treaty.
Today many of the signatories have still not been able to acquire these crown lands because the province is—for whatever reason, largely political—refusing to follow the provisions of this agreement, taking a narrow and restrictive interpretation. For example, Saskatchewan has frustrated its constitutional obligations, along with the Government of Canada, and they continue to fail to implement the terms of the treaty.
Still, while that's happening, we've had no resounding results from the courts. Saskatchewan continues a rolling online public auction of crown lands to private third parties without any notification or recognition of their commitments under the terms of the TLEFA. This matter has forced dozens of first nations into the court system, where technical defences and exhaustive procedural tactics have left the Saskatchewan first nations with no resolution to date.
Finally, there is article eight and the right not to be subject to forced assimilation or destruction of culture. We consistently work with Indian bands that were historically forcibly amalgamated with other bands or have never received recognition as an Indian band under the act, even though the minister can, with her discretion, do so at any time, and/or have not received all their entitlements that they're entitled to under the terms of the treaty.
That's my opening statement.
I'm delighted to be here. I've been crossing things out, so my presentation will fit within the time frames.
In addition to being a professor and research chair at the faculty of law at the University of Victoria, I'm also the director of the first-ever in the world indigenous law degree program, being launched this September at the University of Victoria.
The perspective I'm going to offer here today is that of indigenous law, and I'm going to be drawing on my research over the last several decades in order to do that. My presentation will be organized under two themes. The first is along the question of, do we need this bill? The second is, what does consent mean, and how might that be informed by indigenous law?
On the first theme of whether we need this bill, I believe it is a modest and positive step toward reconciliation. With its call for alignment and for an application of UNDRIP to federal laws, it lays a solid foundation for the future of reconciliation.
Canada has a colonial history. We all know that. Canadian legislation has not been immune from that history. While much more is required than Bill to decolonize Canada and to create space for indigenous governments, laws, and jurisdictions, the bill is a first step.
On this point, I want to mention that UNDRIP is not the source of free, prior, and informed consent, rather, FPIC is an international standard of measure for self-determination. In 2008, about 100 legal scholars and experts gave their support to UNDRIP, and they argued that UNDRIP was essentially a principled framework for achieving justice and reconciliation. Further, that it was entirely consistent with the Canadian Constitution and charter. The balancing provision in UNDRIP requires that its interpretation be according to principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance, and good faith.
On the meaning of consent, I want to bring up an indigenous legal discussion, which I believe will substantively and constructively inform the implementation of Bill .
If we think about consent as a collective legal and political construct that arises from systems of law, including indigenous law, it creates obligations. All legal systems recognize, create, vary, and enforce obligations. Obligations are central to the social role of law, and being able to explain obligations is about explaining authority within law. At the very minimum, we can understand consent as the voluntary acquiescence to the proposal of another. We can understand it as an act or result of reaching an accord. We can think about it as a concurrence of minds, and a willingness to act or allow an infringement of an interest.
In other words, and this is what's most important, consent is an act of reason and deliberation.
From an indigenous legal perspective, we need to think about how consent is constructed within indigenous law, and the necessary standards for consent according to indigenous law. The opportunity and the challenge created by Bill requires us to think critically about questions of indigenous law and about legitimacy. My starting place is that indigenous law must be treated seriously as law. Indigenous legal orders comprise the full scope of law necessary for any society to manage its collective affairs, be they social, political, or economic. Historically, our peoples dealt with violence, lands and resources, family issues, human rights, business and trade, and international relations.
Here's the thing. We know that indigenous law has not gone anywhere in Canada, but it's been undermined, and there are gaps and distortions. It's not enough to know what law is. What's important is knowing what to do when the law is broken. This means that at the very least, an indigenous legal analysis must include the legal processes for a legitimate response to a harm, a conflict, or a problem.
We need to know who the authoritative decision-makers are. What are the legal obligations? What are the substantive and procedural rights? What are the guiding legal principles? What are the public institutions that law operates through, historically and in the present day? Being able to answer these questions enables us to know what the law is and how it should be applied to today's problems. All indigenous legal orders have the intellectual resources to enable people to engage in principled reasoning processes, and that is exactly what creates legitimacy, including for the law of consent.
What are the necessary standards for consent according to indigenous law? Consent has to be lawful, according to indigenous law. In our work with over 40 indigenous communities across Canada, we see some overarching patterns. For instance, Canadian law, as with indigenous law and other systems of law, is founded on aspirations—the want for people to be better than whatever their particular circumstances are enabling them to be. We never live up to these aspirations, but what's important is that we have an opportunity to try.
Across Canada, with the different peoples that we've worked with, the aspirations have included community safety; inclusion in decisions; fairness of process for those harmed, those who have done the harming, and others who are affected; dignity and agency, based on an understanding that people have free will to operate individually and collectively; as well as flexibility and consistency in response to human problems. These aspirations can be understood as standards for consent today. They add up to conceptions of justice deriving from indigenous legal orders.
There are five takeaways that I offer here.
First is that indigenous law of consent is essential, and ensuring that expressions of consent in instruments and in political arrangements are stable and enduring means paying attention to how those matter to indigenous law.
Second, we have in Canada spaces of lawlessness created by gaps in indigenous law where it's been undermined and by a failure in Canadian law, and it's been indigenous women and girls who have faced the violence those spaces of lawlessness have created.
Third, indigenous law hasn't gone anywhere, but the ground is uneven. The important work today is to rebuild indigenous law, and it's going to take just as much work as with any other system of law in the world.
Fourth, indigenous law will make Canada a better place in ensuring that there's a multi-juridical process of working out problems. Law is one of those distinct modes of governance.
Lastly, indigenous law must be conceived on a larger legal-order scale, and the rebuilding must include indigenous human rights from within indigenous legal orders as a part of indigenous governance.
Thank you very much, Madam Chair, and members of the committee. I'm honoured to speak to you about an issue I consider to be of fundamental importance to the future of Canada. I speak to you today from the homeland of the Okanagan Nation. I was supposed to be in Norway, but Toronto can't handle winter so they closed down the airport and I ended up in Kelowna instead. That makes sense to me.
My name is Ken Coates. I'm a Canada research chair at the University of Saskatchewan. I'm delighted to speak with you today.
UNDRIP came out of a remarkable international process I think we should always recognize and honour. From that process came two really key messages: first, that indigenous people have been marginalized around the world, and second, that they have articulated a strategy for their own inclusion, autonomy, and cultural survival. UNDRIP also reminds us of a simple fact that indigenous peoples have never been “given” full recognition of their rights and they've have had to fight for them constantly over many years.
When UNDRIP came to be considered by the Government of Canada, it was presented as an aspirational document. It does spell out very clearly the dreams of indigenous peoples and what should be but are not yet the goals for the people and the Government of Canada. I endorse in total the spirit of UNDRIP. It identifies what indigenous peoples desire and deserve, and it has the capacity to hold the nations of the world accountable.
The main question for today, and for all of you, is whether Bill is the right mechanism for realizing the potential of UNDRIP. While I see many parts of it to be true, I think the answer is far from clear. By the way, I'm not a lawyer. I'm an historian and a public policy person. I'm not as skilled in the nuances of the law as everybody else might be. However, I'm a practical person, so the question for me is whether this bill will result in markedly better outcomes for indigenous peoples in Canada in the short term, medium term, and the long term. At this point, what I would suggest is that the answer to that is maybe. I think we can do better than that with this bill, but also with subsequent conversations.
There's a lot of conversation about duty to consult and accommodating free, prior, and informed consent. I want to not so much deal with that as focus on some other questions. UNDRIP is a remarkable document. It is extremely comprehensive. We should all be very much aware of how broadly it is based in the needs and aspirations of indigenous people. There are a lot of articles that relate to things like improved health outcomes and education, and the protection and preservation of indigenous languages and cultures. When I look at this and see this as harmonizing these laws and actually making them mean something, just think for a second what it would actually mean for Canada, with more than 60 first nations and different languages across the country, if we actually took seriously the commitment to improve education, including in indigenous peoples' languages.
That is something we should have done 50 years ago. It's something we should have done 100 years ago. Now we have most of those nations' languages on the verge of destruction and disappearance. To just take that one issue and make it into a national priority would cost hundreds and hundreds of millions of dollars.
I'm very much in favour of what UNDRIP says about the right of self-government and a meaningful autonomy. When I think of what will actually make a difference for indigenous people, I see the re-empowerment of indigenous communities and nations with appropriate and equitable funding as being by far and away the most important thing we can have arise at the end of this, not necessarily more government programs.
One of the concerns I have about the bill is that it doesn't really outline a process for going forward and actually indicating the desired outcomes—how will we determine success? I share some of the concerns my colleague Dwight Newman expressed today about the possibility that UNDRIP could result in a rapid expansion in the legal context. If you actually look at this on a national scale over the last 20 years or 30 years, the fact that indigenous people have had no choice but to go to the courts repeatedly to fight for basic rights has had a huge impact on those communities. It has cost them hundreds of millions of dollars, without necessarily bringing the results and resolution we actually need and desire. The question is whether UNDRIP and its accommodation within Canadian laws change this dramatically.
I have another concern with this, and it goes back to when UNDRIP first came out. I work an awful lot with indigenous communities in northern Canada and across the west, and I go to talk to high school and university groups a lot. When UNDRIP first came out as a public document, there was great excitement because UNDRIP was so comprehensive and offered so many different things, promised so many different changes. My concern, and I ask you to take it very seriously, is whether Canada will once again over-promise and underperform regarding indigenous rights and entitlements. We have done so over and over again, and we have not broken that cycle. It's really interesting to think about these implications. Will this bill actually change this practice, or will it simply set us up for more evaluation and assessment over time?
We've had lots of commitments in the current government over the last couple of years: a statement of principles, a new framework for relations with indigenous peoples, a commitment to the rethinking of judicial processes. The latter I agree with very strongly. However, we've also had Cindy Blackstock's remarkable effort to expand social service support for indigenous communities and the fact that the battle went on for so long to address a problem that most people would recognize quite openly and consistently.
I guess the other part of this is whether indigenous communities can expect that UNDRIP would now set out operational priorities for Canada. How do we actually manage Canada under an arrangement that really does respect nation-to-nation relationships and the autonomy of indigenous people? I'm concerned that, through the annual reports, we'll now simply be annually reporting on what we haven't done, the fact that Canada has not actually responded to the opportunities before it.
I look forward either in this bill or in the subsequent implementation strategies that arise from this.... The references speak specifically to the security of existing negotiated agreements with indigenous peoples, to make sure that those agreements that have been already been put in place in good faith stay and continue on. More importantly, I'm really anxious to see that we have a commitment to a different way of making decisions in Canada. I'm in favour of what I describe as a co-production of policy. Co-production of policy is that when indigenous affairs are on the table, indigenous peoples are there as part of the process, and that when funding decisions are being made, you actually co-produce those funding priorities. It's not that a government, however well meaning, sort of sits back and does this from afar, but that it in fact negotiates with them directly.
I also would hope that, either in the presentation of this bill or in the bill itself, Parliament recognizes the complexity and potential cost of the UNDRIP commitments. To even go halfway toward meeting the obligations set out under UNDRIP would cost billions of dollars. I think it's money that we have to spend and we should have spent it a long time ago, but it will cost a great deal and take a great deal of effort to put in place.
As I look through this, I see we have an opportunity and obligation in Canada to tie all the various threads together. We have lots of things going on in the aboriginal space in this country. UNDRIP is part of the puzzle. We have the desire to build nation-to-nation relationships, the government statement of principles, the whole question of inherent and treaty and aboriginal rights, the completion of modern treaty processes, aboriginal self-government, the re-evaluation that I hope is the renegotiation of earlier treaties starting in the maritime provinces, the reform of judicial and conflict resolution systems, and the appropriate financing of indigenous services and infrastructure.
Will this bill move it in the right direction? I'm not so sure. I hope it does. I celebrate the spirit and aspirations in UNDRIP. I think the practical application is the part we have to focus on.
Let me just finish up with a quick observation. When governments make policy—not just specifically with aboriginal peoples but with all peoples in all policy areas—there are actually two elements. One element is the formulation of policy and legislation, the process that you honourable citizens are doing right now, bringing the legislation and passing it and basically declaring the government's intent, the intent of the Parliament of Canada.
The second part is the implementation of the policy. What do you actually do with it? What actually comes out the other end? We pay way more attention, as academics, policy-makers, and commentators, to the formation of policy and much less to the implementation. Without the second part, without focusing on implementation, if this bill comes into effect, if we are going to harmonize these laws, how are we going to do it, what is the time period, and what are the funding allocations? Will real change actually occur at the other end of this? Without that second level of conversation and discussion, UNDRIP will lose its effectiveness and become yet another sort of failed promise to indigenous peoples.
My overriding observation is simply this. Let's not set indigenous peoples up for failure at the hands of the Government of Canada again. We've done that too many times. We can change that trajectory and that agenda a great deal.
Thank you very much.
If it's okay, Ryan, I'll go first.
Number one, I am astonished by the patience of indigenous peoples. We've been talking about this for 150 years and one of the most single continuities in indigenous law is government lawlessness: you pass a law; you ignore it.
Aboriginal folks win Supreme Court decisions and say, “Wow, this is great”, and then 10 years later what have you got? You have a doubling of the suicide rate. You have more marginalized people living in poverty. I find this really frustrating.
Right now all parties have reached the desire for a different relationship and wanting to move things further. Personally, since I only get a chance to say this to all of you once, I think we should take all of the issues of indigenous rights out of the partisan arena. I think what we should do is make it an all-party process for negotiating with first nations and working with first nations, Inuit, and Métis, and depoliticize it. It is too important. Indigenous people pay 100% of the price. They're the ones who are suffering. They're the ones who continue to suffer.
However, I am a complete optimist. I was actually raised in Yukon. The Yukon of 2018 is not the Yukon I grew up in in the 1960s. Indigenous peoples have been empowered. The Yukon territorial government has accepted and incorporated indigenous involvement at all sorts of different levels. The celebration of indigenous culture, language, and tradition is extremely strong. We've watched that happen in a place that quite frankly in the 1960s was discriminatory. Aboriginal people were marginalized, as you were saying, and you understand that extremely well in northern jurisdictions and resource economies. Yukon is not the same place. I wonder if we can actually take the northern experience, which is very rich and very diverse, and not look at ideas from Ottawa down, but look at ideas from the north and bring them south.