Thank you, Madam Chair, for the invitation to present to the committee.
My name is Merrell-Ann Phare. I'm based out of Winnipeg, Manitoba. I'm the founding executive director of the Centre for Indigenous Environmental Resources, which is a national first nation charitable environmental organization. Working together in 1994 with 10 chiefs from across Canada, including Phil Fontaine, Matthew Coon Come, and Manny Jules, whose names some of you will know, we built CIER. Since that time we've implemented across Canada more than 400 environmental capacity-building projects in as many first nations.
I'm a lawyer. I work and write on environmental indigenous law, water and water governance, and treaty land entitlement issues. In 2016, on behalf of the Government of the Northwest Territories, I negotiated two transboundary water agreements in the Mackenzie River basin, between the governments of NWT and Alberta and between the governments of the Northwest Territories and British Columbia.
I want to applaud both Mr. Saganash for his tireless work and the current government for their commitments to the United Nations declaration and on building nation-to-nation relationships. No government in Canadian history has made such important statements. However, to be more than aspirational goals, they must be enforced in law.
I've read the transcripts of evidence given to the committee to date. I'm going to assist you by trying to focus on just one thing—namely, the free, prior, and informed consent piece. I want to start by saying that it does not, in my view, mean a veto, but it does mean some very important process and substance elements, which I will explain.
Here's the issue as I see it. Indigenous nations were original partners in Confederation and should have been recognized as such. We should have, from the beginning, worked together as collaborating nations to build Canada. But we didn't. For example, we made treaties and then ignored them. This is the problem.
The solution, the one that would greatly prevent or reduce project-based disputes—think of pipelines when I say that—and the one that would also result in real reconciliation, lies in a government-to-government approach to consent. This is mutual consent between governments in Canada—federal, provincial, territorial, and indigenous. My colleagues and I call this “collaborative consent”. We believe it's a nation-to-nation mechanism to achieving the United Nations declaration.
Full reconciliation will happen when indigenous nations are recognized as partners in Confederation and Canada's system of governance is structured accordingly. Yes, this sounds high-minded, abstract, and theoretical, but it isn't. It's happening already. We have not only proof of possibility; I will share with you some examples. We just need to provide more oxygen to these examples. Bill can make that happen.
Collaborative consent is how you get to the United Nations declaration. It's simple to understand and hard to do, because it means a different attitude and a real change in practice, and also in institutions and governance. We first wrote about the collaborative consent concept in 2016. It was the approach we'd been using in the Northwest Territories since 2005 and more recently in negotiating the water agreements I spoke to you about.
You have an executive summary in front of you setting out the details of our seven hallmarks of collaborative consent. It's written in the context of a B.C. water application, but it applies to all situations.
A nation-to-nation approach to consent, to what we call collaborative consent, already operates on a daily basis in our own country, and it has worked well. Today federal, provincial, and territorial governments co-operate, collaborate, negotiate, and plan many things that are of common, overlapping, or even conflicting interest through a process called “co-operative federalism”. This process is ongoing, is not time-bound, is rarely ever perfect, and is necessary to make a complex society like Canada work. There's no real other way to do it. It's the way we do democracy in Canada.
Over the last 151 years, this approach has been tested well. We have grown and evolved as a country. We know how disputes occur and how they're resolved. We also know that they are very rare. Health care is a prime example of where conflicts can arise, as is anything to do with oil and gas, as we see from our headlines daily. But extreme conflict, such as intergovernmental litigation, is actually very rare. If you think about this, at co-operative federalism tables, jurisdictions are actually achieving each other's free, prior, and informed consent to proposals on the table. Collaborative consent is co-operative federalism as if indigenous nations had been participants from the beginning as part of the governance of Canada. We're partway there. We just need to go a bit further.
The day after this bill is passed into law, federal and indigenous governments should start formal transition to collaborative governance arrangements, as per co-operative federalism. I'll give you an example of an immediate change that could occur. In the 2016-17 fiscal year, there were 141 FPT—federal-provincial-territorial—intergovernmental meetings. Five of them were between premiers, 44 of them were between ministers, and 85 of them were between deputy ministers. This is where all of the work is done to set or partner on the policy and program directions for Canada about almost every aspect of Canadian society, regardless of who holds jurisdiction. This is where the real work of governing this country happens. Levels of governments bring their jurisdictional authorities to the table, and then they negotiate how they're going to work together on any given issue.
None of these meetings involved indigenous governments, and only one of them had anything to do with indigenous issues. These FPT meetings should include indigenous nations. They should be FPTI tables. It is clear that indigenous nations would have to self-organize in a way that is conducive to permanent participation. Many are in governance transition, it's true, but that's a solvable problem. The most important thing is that these tables of co-operative federalism must include permanent chairs for indigenous nations.
We need to achieve consensus at FPTI tables about broad directions, policies, and agreements that drive Canada. Think water and energy policy, climate change, and conservation targets. These are the upstream discussions necessary to preclude end-of-process or project-based disputes. Under co-operative federalism, agreement isn't always reached, and governments must or do flex when diplomacy and negotiations fail. This is unlikely to change. Governments will always have the things that they can resort to if other jurisdictions don't agree, such as legal action. Collaborative consent doesn't mean that indigenous governments won't sue other governments over specific disagreements. I just believe that it's less likely to occur.
I'll give you three examples of where collaborative consent is already happening in Canada. One example is in Manitoba. We are developing a collaborative governance table in southern Manitoba, involving 17 mayors, 10 first nations chiefs and, hopefully, the Métis. This is a collaborative consent process resulting in a permanent governance table. It covers 70% of the population of Manitoba and 68% of the GDP. Collaborative decisions can have a huge impact at this scale.
The NWT is another example. It has a territorial resource revenue-sharing agreement with all indigenous governments. What this means is that, regardless of where resource development happens anywhere in the Northwest Territories, 25% of all the revenues that the Government of the Northwest Territories receives from resource development is shared among all indigenous governments according to a sharing formula that the indigenous governments themselves developed. This is in addition to whatever local impact benefit agreement might be negotiated with the directly impacted community. This is the kind of solution needed to deal with linear projects like pipelines.
The NWT also created two laws, the Wildlife Act and the Species at Risk (NWT) Act, through a co-drafting process where all hands were on the pen, rather than a co-development process where, at the end of the day, justice holds the pen over the text.
To conclude, we are in the middle of rebuilding our nation, starting with nation-to-nation relationships. There are 150 years of work that should have been started long ago, yet the opportunity sits before us. We all will, by necessity, need to change.
I want to leave you with an image. Think of our FPTI governments as beams. We all need governments to bend towards the space where we can work co-operatively together at a fully occupied table of Confederation. We have had three of the four beams work, bend, and build for 151 years, but we need the final beam to be in place in order to achieve reconciliation of all Confederation. Bill gives us the focus and fortitude to bend all the beams and be more explicit about the necessity, not the luxury, of indigenous participation. The collaborative consent examples that I've shared show that it is happening in small places.
Bill will mandate that this thinking be mainstream, and will require everyone, no matter what their place in the system, to look at their role through the lens of compliance with the UN declaration. This committee needs to think about how we accelerate this whole thing so that it will happen everywhere, from top to bottom to top. This path we're on may seem very difficult. It's certainly complex.
However, as the Maori say, we have worked too hard not to work harder; we have come too far not to go further.
Thank you, Madam Chair.
First of all, thank you to the committee for inviting me here today to give you some comments on Bill .
My name is Tom Isaac. I'm a partner with Cassels, Brock & Blackwell. I'm here in my personal capacity. I practice exclusively in the area of aboriginal law across Canada.
My comments today are focused on why incorporating UNDRIP within Canada's already highly developed and world-leading legal regime. Protecting indigenous rights against unilateral and unjustified state action requires a prudent and thoughtful approach. This approach needs to be sensitive to existing Canadian law and the tremendous efforts undertaken by our courts, indigenous peoples, and some public governments over the last 25 years. Bill , as currently drafted, does not reflect the necessary prudence or thoughtfulness required, in my respectful view.
UNDRIP and the embrace of the principles therein mark a critical step forward by some parts of the international community to recognize and protect the rights of indigenous peoples globally. This is a significant international human rights achievement. UNDRIP provides an important benchmark in a world that has too often harmed, mistreated, and exploited indigenous peoples.
You will note that I said “some parts of the international community”. Not all states with indigenous peoples are on the right path, and the process itself relating to UNDRIP has been divided. During the 2007 UN General Assembly vote regarding UNDRIP, only 42 states—that's out of 88, according to the United Nations at that time—voted in favour of UNDRIP. In fact, most of them put the same caveats on their vote in favour of UNDRIP that Canada ultimately did, in terms of its being subject to domestic law. So 42 out of 88 voted in favour of UNDRIP, while 4, including Canada at the time, took principled reasons to vote against it. As for the other 42, they either abstained, of which 100% of those abstaining that day were states with indigenous peoples, or they didn't bother to show up at the UN for the vote. Of those states, 93% had indigenous peoples.
My point here is that it's important to recognize that UNDRIP was drafted in the context of this division. By necessity, UNDRIP needed to be blunt and as easy to understand as possible, given that it was intended to apply globally to address those states that act without constraint against the rights of indigenous peoples.
This is not to suggest that UNDRIP has nothing to offer Canada. I want to be very clear that many elements of UNDRIP can be extremely relevant to Canada. In particular, I would focus on the ones relating to education, health, equality under the law, the development and maintenance of political systems and institutions, social and economic security, and gender equality. While these and other elements of UNDRIP are relevant to Canada, any effort to adopt UNDRIP must reflect the distance that Canada has travelled to date to prioritize reconciliation with indigenous peoples, the lessons we have learned over the past decades, and the significance—I would say the unique significance at law globally—of section 35, a uniquely Canadian creation.
Since the 1990 Supreme Court of Canada decision in Sparrow, the court has developed a framework for protecting indigenous rights and reconciling those rights with other indigenous and non-indigenous Canadians through nearly 70 decisions. The progress made so far has been the product of substantial and purposeful efforts and dialogue between indigenous and non-indigenous Canadians. Today, after decades of effort and investment by all parties, we have a constitutional regime that, for example, recognizes and protects Tsilhqot’in aboriginal title rights to land, and identifies the degree of consultation required when reversing the flow of a pipeline.
We also have a federal government that has expressly stated that Canada's most important relationship is with its indigenous peoples. As each year passes, Canadians, indigenous and non-indigenous, gain increased certainty and confidence in how indigenous and non-indigenous peoples can respectfully and productively live together.
In introducing Bill at second reading, the bill's sponsor said that the bill promises to “at least provide the basis or framework for reconciliation in our country”, with respect, suggesting that a new approach to indigenous rights is needed, one focused on reconciliation. Again, with respect, reconciliation has been the primary goal of the Supreme Court of Canada for nearly three decades. Again, I'm not here to suggest that we're done, but reconciliation is at the core of our case law to date.
Progress in defining and advancing reconciliation has resulted in increasing clarity and has allowed us to have more meaningful discussions, better protect aboriginal and treaty rights, and promote reconciliation through practice. Bill , as it is presently drafted, risks disrupting the increased clarity within Canada's legal regime for protecting indigenous rights and as a result, risks becoming an obstacle to the pursuit of reconciliation.
UNDRIP itself cannot be meaningfully incorporated into Canadian law unless it is understood in relation to the existing Canadian legal framework, importantly, including section 35. For example, UNDRIP uses such terms as “indigenous”, “the lands and territories of indigenous peoples”, and “free, prior and informed consent”, each of which will need to be interpreted within the context of Canada's existing legal regime for the protection of indigenous rights.
It is presently unclear in Canadian law who “indigenous” refers to. In Daniels, the Supreme Court stated that the term included those individuals who do not possess section 35 rights. Additional instruction is needed to clarify the intended beneficiaries of the rights set out in UNDRIP. Is it intended to apply to all indigenous peoples throughout this great country, including those who self-identify as being indigenous?
Likewise, Canada has developed a highly sophisticated understanding of indigenous interests in land, including traditional territories, aboriginal title, a right to the land itself, and treaty lands. These terms aren't used in UNDRIP, which lacks specificity, including any relation to overlapping and competing indigenous interests, which is a very live issue in Canadian law.
Finally, much has already been said about free, prior, and informed consent. I'd be delighted to talk more about this concept. It means a veto, or a duty to consult that is consistent with what already exists in Canadian law, or something different. This phrase is clear on its face upon plain reading of UNDRIP, and I think credit ought to be given to the drafters. Any attempt at redefining the phrase in a less than forthright manner, in terms of its application to Canada, risks undermining the needed and necessary transparency in the reconciliation process. I say this with respect. Say what you mean and mean what you say.
Nowhere does UNDRIP refer to reconciliation or give specific consideration to how indigenous and non-indigenous Canadians can respectfully coexist. Such considerations are irrelevant for most countries, where indigenous rights are fully subject to the acts of a government. In Canada, reconciliation and principles, like the honour of the crown, are at the core of the relationship between indigenous peoples and all Canadians and work to direct and constrain how governments interact with indigenous rights.
In the preamble of Bill , it suggests that the Parliament of Canada recognizes the principles set out in UNDRIP. There are many principles enunciated in UNDRIP, which are all relating to things like democracy, the rule of law, and the charter, none of which are novel to Canada. However, section 5 of Bill C-262 refers to the objectives of UNDRIP, although UNDRIP makes no reference to its objectives, its goals, its aims, or its intentions.
With respect, the sponsor has said that Bill can advance “justice” and “reconciliation” and clarify “the existing rights of indigenous peoples” and establish “very clear rules”. As presently drafted—and again, with respect—the bill provides no clear or even vague direction on any of those matters, does not explain how it will advance justice or reconciliation, and does nothing to clarify the existing rights of indigenous peoples in Canada.
Finally, the bill is missing an element that should be essential for any legislation that proposes to alter Canada's legal regime, which would be a clear explanation of how the outcome of adopting the bill will differ from the current law existing in Canada.
Canada's legal regime relating to the protection of indigenous rights is evolving and can benefit from being examined critically against the clear, if bluntly stated, articles of UNDRIP. However, simply adopting UNDRIP, without clear direction of how it should interact with Canada's existing legal regime risks disrupting the increasing clarity that has been gained through unprecedented efforts and decades of decisions by the Supreme Court of Canada.
To conclude, to move forward, Canada requires a thoughtful and purposeful approach, consistent with the honour of the crown, and I suggest to the committee that this is what reconciliation deserves. To the extent that the bill can contribute to that dialogue, it should be revised to provide the context and substance required for promoting and enhancing reconciliation and protecting indigenous rights in Canada. As I wrote in my 2016 report as the minister’s special representative on reconciliation with Métis, “Reconciliation is more than platitudes and recognition. Reconciliation flows from the constitutionally protected rights...protected by Section 35 and...must be grounded in practical actions.”
Those are my submissions.
I want to open this afternoon by acknowledging the lands of the Algonquin people, where we are meeting today.
My name is Sheryl Lightfoot. I'm an Anishinabe from the Lake Superior band of Ojibwa. I'm the Canada research chair of global indigenous rights and politics at the University of British Columbia, where I hold a joint appointment as associate professor in both the first nations and indigenous studies program and the Department of Political Science. I hold a Ph.D. in political science with a specialty in human rights and international relations. I've studied and written specifically on the UN declaration for more than a decade, looking at its genesis, development, and implementation in both global and comparative perspective, in numerous articles, in book chapters, and in a 2016 book I published with Routledge press titled Global Indigenous Politics.
I am very honoured to be called before this committee to share a global human rights perspective on the proposed legislation. I view this legislation as a necessary first step toward implementing the UN declaration in Canada.
In the decade since its passage in the UN General Assembly, the UN declaration has gained universal consensus as an international human rights instrument and has been reaffirmed by consensus eight times in the UN General Assembly. A report by the UN Expert Mechanism on the Rights of Indigenous Peoples on the 10-year progress of the declaration noted that it now informs the work of many global actors, has influenced the drafting of multiple new state constitutions and statutes, and has contributed to the development of laws and policies pertaining to indigenous peoples worldwide.
A similar 10-year anniversary report by the UN Permanent Forum on Indigenous Issues recounted progress in the areas of increased constitutional recognition of indigenous peoples and a growing body of jurisprudence, including important legal victories for indigenous rights in Belize, Indonesia, the African commission, Bangladesh, and the Caribbean Court of Justice.
Even with these positive steps, however, implementation of the UN declaration remains elusive around the world, as well as in Canada. Even in countries with strong legal frameworks, like Canada, severe implementation gaps remain between legal recognition and concrete action steps on the ground, and therefore actual implementation of the rights of indigenous peoples has been limited.
As a consensus international human rights instrument, the UN declaration reflects legal commitments that are related to the UN charter, other international treaty commitments, and customary international law. Implementation of indigenous rights in domestic settings is expected to be comprehensive and systematic. It has always been thought to include judicial, policy reform, and legislative avenues, the synergy of which will lead to full implementation.
The United Nations Expert Mechanism on the Rights of Indigenous Peoples, or EMRIP, wrote a 10-year report on the UN declaration and implementation, and it reads:
||As States have the principal responsibility for adopting legislative measures and public policies to implement the rights recognized in the Declaration..., they should adopt measures to achieve this aim, including through the implementation of recommendations and decisions of all human rights bodies....
The United Nations special rapporteur on the rights of indigenous peoples noted in her 2017 report to the UN General Assembly:
||The effective implementation of the rights of indigenous peoples requires States to develop an ambitious programme of reforms at all levels to remedy past and current injustices. This should involve all the branches of the State, including the executive, legislative and judiciary, and implies a combination of political will, legal reform, technical capacity and financial commitment.
A UN handbook for parliamentarians on implementing the UN declaration, published by the Inter-Parliamentary Union and several UN agencies, cites the law-making role of parliaments as of particular importance in the implementation of the declaration. This handbook suggests that legislative review and reform are essential first steps in implementation efforts and that all future national legislation should be evaluated for compliance with the UN declaration as an ordinary part of the legislative process. The handbook provides existing examples of national implementation legislation already adopted by Bolivia in 2007 and Republic of the Congo in 2011.
A similar manual for national human rights institutions states that national legislation is an important first step toward domestic implementation, but that “legislation alone is generally not sufficient”, so a national action plan should also be developed that includes legislation, a review of existing laws and policies, a complaints mechanism, stakeholder education, and active involvement of indigenous peoples in the development and implementation of the action plan.
The World Conference on Indigenous Peoples, hosted by the UN in New York in September 2014, was held specifically to share best practices on indigenous rights and their implementation. The outcome document of the world conference clearly stated that the necessary elements for national implementation and the collective commitment of UN member states participating would include national legislative frameworks, law and policy reviews, and national action plans.
Calls for concrete national legal and political reform measures in Canada began as early as 2011, at the UN Permanent Forum on Indigenous Issues. Then, by June 2015, the Truth and Reconciliation Commission of Canada announced the release of its summary report. This report included 94 sweeping calls to action. These 94 calls, which were intended to form the blueprint for reconciliation into the future, call upon all layers of government to make fundamental changes in policies and programs in order to both repair the harm caused by residential schools and improve the relationship between government and indigenous peoples into the future.
Call to action 43 specifically states:
|| We call upon federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.
Call to action 44 states:
|| We call upon the Government of Canada to develop a national action plan, strategies, and other concrete measures to achieve the goals of the United Nations Declaration on the Rights of Indigenous Peoples.
In all, 16 of the 94 calls to action make reference to the UN declaration. Because implementation of the UN declaration provides the necessary framework for reconciliation, it is therefore impossible, according to the TRC, for one to support the TRC and not support full implementation of the UN declaration. Rejecting implementation of the UN declaration equates to rejection of the TRC report.
In September 2017 the UN Committee on the Elimination of Racial Discrimination—or CERD, the monitoring body for the International Convention on the Elimination of All Forms of Racial Discrimination, which Canada signed in 1966 and ratified in 1970—conducted its periodic review of Canada. The CERD report applauded the current government's commitment to implement all of the TRC's 94 calls to action, but mentioned that the CERD is “concerned at the lack of an action plan and of full implementation”. The CERD made a recommendation that Canada develop, in consultation with indigenous peoples, a concrete action plan to implement the TRC's 94 calls to action and to implement the UN declaration and adopt a legislative framework to do so, along with a national action plan, annual public report, and a full legal, policy, and regulation review to ensure that all laws and policies are consistent with the UN declaration.
As all of these statements note, a legislative framework in Canada is a crucial initial step in implementing the declaration. Follow-up actions must then also include a national action plan, annual reporting, and a full policy and regulation review. The legislation currently under study would require the government to engage in all of these steps, and therefore better align Canadian law and practice with its international human rights obligations.
Thank you, Madam Chair.
Aaniin kina weya. Good afternoon, everyone. Thank you for the invitation to speak with you today.
I would like to start by acknowledging that we are on the unceded traditional territory of the Algonquin and Anishinabe people.
My name is Sharon Stinson Henry. I'm a former chief of the Chippewas of Rama First Nation in Ontario. I'm here on behalf of the National Indigenous Economic Development Board.
Our board is made up of first nations, Inuit, and Métis business and community leaders from across Canada, whose mandate is to advise the whole of the federal government on indigenous economic development issues. On behalf of the board, I'm pleased to offer information that may assist the committee in your study of Bill .
The board supports the principle set out in the United Nations Declaration on the Rights of Indigenous Peoples, and believes it should be enshrined in the laws of Canada. As such, the board supports Bill and its recommendation for the full adoption of the declaration into Canadian law. The board commends Mr. Saganash's initiative for introducing this important bill.
The declaration describes 46 articles by which the international community and Canada, as a signatory, can work to achieve socio-economic equality and end the systemic racism which has limited the development of indigenous peoples for far too long. In January 2017, our board released a statement welcoming Canada's decision to fully support the declaration without qualification. In this statement, we noted that “by taking actions that are meaningful, measurable, and concrete, Canada can demonstrate its commitment to the [declaration] and improve economic outcomes for all Canadians.”
The board has also commended the TRC's recommendation that Canada adopt and implement the declaration as the framework for reconciliation, including the development of a national action plan, as well as strategies and concrete measures to achieve the declaration's goals.
To date, your government has made bold and inspirational statements describing the Government of Canada's commitment to renewing the relationship between Canada and its indigenous peoples, and to moving forward with reconciliation based on recognition of rights, respect, and partnership. In fact, Prime Minister Trudeau has stated that “No relationship is more important to Canada than the relationship with Indigenous Peoples.”
Furthermore, in their mandate letters, and were directed to be part of the working group of ministers on the review of laws and policies related to indigenous peoples. The working group was tasked, among other things, with ensuring that the crown is fully executing its legal, constitutional, and international human rights obligations and commitments. Minister Bennett was specifically directed to work with the to implement the declaration in full partnership with indigenous peoples.
Although we acknowledge recent steps taken by the government to implement the declaration, recent and upcoming reports released by our board show that there are still significant gaps between indigenous and non-indigenous Canadians in terms of completion of high school, university completion, labour force participation, employment, average annual income, and overall quality of life. Therefore, our board strongly believes that Bill would allow Canada to take concrete action towards achieving true reconciliation with indigenous peoples.
Implementing Bill would enshrine the declaration in law today and for future generations, require the review of federal laws to ensure consistency with the standards set out in the declaration, require the federal government to work with indigenous peoples to develop a national action plan to implement the declaration, and require annual reporting to Parliament on progress made toward the implementation of the declaration. Our board believes that these requirements would promote and strengthen the spirit of partnership and mutual respect that marks Canada's stated commitment to reconciliation.
Among the declaration's articles, and of particular interest to our board, is article 3, which states that, “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Article 4 states, “Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.”
Indigenous self-determination is foundational to the board's vision of vibrant indigenous economies, characterized by economic self-sufficiency and socio-economic equality with the rest of Canada. To achieve self-determination, however, the right conditions for success are essential. In this sense, article 21 of the declaration states:
|| Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions....
||States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions.
The board also believes that implementing the declaration would ensure the protection of reserve lands and traditional territories, and would allow for reserve sizes to go back to what they originally were. In this sense, article 8 calls upon states to “provide effective mechanisms for prevention of, and redress for any action which has the aim or effect of dispossessing them of their lands, territories or resources.”
Article 10 further underlines this protection by stating:
||Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.
Article 26 is also relevant in this regard, as it calls upon states to give legal recognition and protection to the lands, territories, and resources which indigenous peoples have traditionally owned, occupied, or otherwise used or acquired.
In the past, our board has recommended that the Government of Canada take necessary steps to ensure that the standards set out in the declaration are met, and that it report annually on its progress toward these goals.
Specifically, we recommend that Canada ensure that indigenous peoples have equal economic opportunities in community development, education, employment, and access to capital; that indigenous communities have equal access to health care, clean water, safe and reliable housing, and healthy affordable food; and that Canada work in mutual partnership with indigenous people to develop legislative and policy alternatives to the Indian Act that would give further expression to the governance powers of indigenous peoples, and how they co-exist with the powers of the federal, provincial, and territorial governments.
Our board was, therefore, pleased to see that Bill aligns with our recommendations. We strongly believe that Bill C-262 will actively contribute to the reconciliation process in our country.
In closing, we believe that moving forward in the spirit of reconciliation, and rewriting laws and policies requires that we always work together to make sure that policies are not punitive or regressive, but that they are modern, innovative, progressive and, above all, fair.
As indicated in the declaration, “States, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.”
Meegwetch. Thank you, Madam chair.
[Witness speaks in Ojibwe
My name is Jessica Bolduc, and I am Anishinabe, from the Bear Clan of the Batchewana First Nation. I'm grateful to be here as a guest on unceded Algonquin territory, and I want to begin by giving thanks to the Algonquin people for their continued presence and stewardship of this land.
Madam Chair, members of the committee, meegwetch for inviting me to be here today to share on behalf of the 4Rs Youth Movement. I send my gratitude to Mr. Saganash for his leadership, alongside many others, in putting this bill forward. I had the pleasure of meeting Maïtée, who is doing work around indigenous youth voices. She has a beautiful fierceness that I'm sure she gets from you.
The 4Rs Youth Movement has evolved over the past four years as a youth-led collaborative seeking to change the country now known as Canada by changing the relationships between indigenous and non-indigenous youth. 4Rs started with honest conversation about Canadian identity. It shaped our vision and our mission, and was followed by a reflection of the values that were necessary to do this change-making work with integrity, via respect, reciprocity, reconciliation, and relevance—the 4Rs. We believe that a relationship-based approach to social change will enable youth to formulate strategies for reconciliation that rebuilds Canada for both present and future generations. Thinking about reconciliation broadly, this means confronting an incredibly difficult history, one that continues to be lived daily and impacts our individual and collective experiences as indigenous peoples.
For 4Rs, adopting UNDRIP is about putting in motion the Canadian framework for reconciliation that must centre the needs, voices, and perspectives of indigenous peoples, communities, and nations in the process of talking about and working toward reconciliation.
As young people in this moment of our history, I understand that we'll be the generation leading the implementation of the TRC calls to action. I, and the young people I work with, are taking this responsibility seriously. Reconciliation to 4Rs is first about developing deep, authentic relationships across individuals, cultures, and geographies as a foundation from which systems change and new paradigms and actions will emerge.
Truthfully, though, these past few months have eroded my belief in Canada's reconciliation process. I'm not alone in this sentiment. Indigenous young people are speaking out about the reconciliation rhetoric that lulls us into a false sense of progress, but does little to enact real change. How is reconciliation possible when indigenous youth like Colten Boushie are treated without human dignity and decisions are made that tell our people that justice in Canada is not for us?
Last week, Jade Tootoosis, Colten's cousin, spoke powerfully at the international table calling for the United Nations to undertake a study of systemic racism against indigenous people in Canada's judicial and legal systems. She said:
||The Canadian justice system has failed Colten, our community, and indigenous people in ways that impede our human rights. We deserve better. My brother Colten deserves better.
We do deserve better.
4Rs is led by indigenous young people, young people who are not unlike Colten, from our staff to our governance. We are supported by a network of settler youth and adult allies, because change requires working across cultures and across generations. When it comes to reconciliation, investments are needed in indigenous youth and communities so we can enter reconciliation processes in wholeness and on our own terms. This involves investing in indigenous youth to find strength and pride and identity. It requires centring and restoring indigenous languages and knowledge before, and at the same time as, we seed reconciliation. It requires that we look to break the cycle of systemic racism that Canada's social, political, and legal systems uphold. When lands and waters are under threat from development and pollution, we don't have a healthy environment for our shared work. Any consideration of reconciliation must also take into account the well-being of the earth.
Where Bill has the potential to impact 4Rs' work the most is in the interconnected pieces of UNDRIP that relate to the reclamation of indigenous identity through language, culture, and connection to land—articles 13, 24, and 31—helping to transform intergenerational trauma into intergenerational resilience and healing.
On January 21 and January 22, 2018, 70 first nations, Métis, and Inuit youth between the ages of 13 and 26 from every province and territory across the country gathered in Ottawa for the Hope Forum, a national gathering of indigenous youth leaders on healing and life promotion hosted by the organization We Matter.
I attended day two of the forum, a national round table discussion organized in response to the current mental health and suicide realities of indigenous youth in communities. The live broadcast of the round table was seen by 16,000 people, and the recorded video by 58,000 people. From there, a number of calls to action were put forward calling on all sectors of government and key influencers in the community to take action. All of the calls these young people put forward fit within the guidelines of the United Nations Declaration on the Rights of Indigenous Peoples, specifically relating to article 24, implementation of which is very important for indigenous youth.
Bill will make the recommendations of these indigenous youth undeniable. Recognizing on-the-land and cultural activities is a key aspect of indigenous mental health, wellness, and suicide prevention. Bill C-262, to me, is about furthering healing. It is about equity and restoration, as well as the preservation and survival of indigeneity, which is unique to the experiences and diversity of first nations, Métis, and Inuit youth.
Interpreting Canada's constitution, consistent with the declaration as proposed through Bill , is a crucial step in implementing this reconciliation framework. It restores my hope that we can return to a process of reconciliation with integrity and mutual accountability. But in order to have integrity and be accountable, Bill C-262 requires Canada to build readiness, to do your work first to understand your role and responsibilities, and to work with respect, care, and collaboration with indigenous people, and then to set in motion a national plan of action.
This means that we all have a part to play, as individuals, families, leaders, organizations, institutions, communities, and all levels of government. I once heard an Anishinabe elder, Jim Dumont, say that language is the voice of the culture and culture is the strength of the language. This resonates with me because it demonstrates that the rights contained in UNDRIP are interconnected and interrelated, and therefore must be interpreted with the same holistic understanding and not be impacted by the constitutional division of powers between levels of federal and provincial governments, which tempt us to look at implementation in isolation.
However, implementation is not going to be easy, not because of the complexity of what is ahead of us, but because of fear. It's fear of the unknown; of getting things wrong; of having to share power, privilege, and resources; of hurting more people; and fears that limit Canada's ability to imagine a future with UNDRIP fully implemented. If we lead with fear, it will no doubt become embedded in the implementation of UNDRIP, eroding what is possible; destroying what is being borne; seeing history, yet again, repeat itself when it comes to upholding indigenous rights. Canada has to believe that UNDRIP is possible and embrace the discomfort and uncertainty that goes along with being in a relationship with indigenous peoples that is fundamentally different. It's not what we do that matters, but how we do it that will create the most change.
In that spirit I will begin to wrap up with some recommendations on the “how” for those of you who will be taking the next steps on Bill .
Share a meal together. Get to know each other's stories, your hopes and dreams, but do it in the company of food.
Impart a relationship-based approach to implementation, not a top-down, isolated process that is removed from purpose and community.
Make this personal, if it isn't already.
Lead from a place of respect and caring and name your fears so that they can be worked on together and not left to fester.
Don't build fear and limiting beliefs into your implementation plan, making this inherently adversarial. Instead, lead with intention, hope, and possibility.
Acknowledge what you don't know. Reconciliation is a process of learning and unlearning. Ensure that all public servants working on Bill are educated in indigenous issues and policy, have undergone cultural competency training, and better yet, have lived experience—meaning, hire indigenous people.
Nothing about us, without us. Co-create with indigenous youth. Hire them as researchers, policy developers, negotiators, or lawyers. A whole mass of visionaries is waiting to be invited to be a part of the process and hold the solutions to the challenges that await you.
Be intentional about the inclusion of two-spirited, LGBTQ+ indigenous people. Explicitly state this in Bill and ensure that resources are allocated toward ensuring that their voices are heard and acted on.
Think and work in systems.
I have two more.
Take an ecosystem approach to implementing the national action plan. Bring systems change leaders into the conversation to help break down silos. Make your process transparent, inclusive, and accessible.
If my grandma, as an individual rights holder, cannot activate UNDRIP, then Bill is not adequate.
Take careful steps, but don't waste time. Individual rights holders must feel the impacts of implementation alongside the systemic and legal changes that are required. We cannot afford to lose any more indigenous lives.
The goal here is to get to a nation-to-nation relationship that is based in mutual respect and principles of justice and equality—essentially democracy. The bill itself sets out the next steps.
First again is a review of existing law and policy. That's already underway—check.
Second is making sure that future law and policy is consistent with the declaration. That needs to be a next step.
Third, a reporting mechanism is called for by the international system and this bill. That needs to come. With respect to the national action plan, we hear that it's under way, but I have no evidence of that personally, so I think we are behind the ball there.
I just need to mention that the constitutions of Ecuador and Bolivia, passed in 2008 and 2009 respectively, both adopted the declaration into national law, and Ecuador actually enshrined it into law completely at that time. I don't recommend this step. It creates an immediate implementation gap between law and practice, and as I understand it, this is not at all what this bill is doing. This bill merely sets out a framework, a set of directions for “must” steps for all future governments.
In terms of a national action plan, I also have to point out that Canada is behind. So far, Bolivia, Mexico, Paraguay, and Peru all have national action plans, and when I was at the United Nations last week, El Salvador announced that it had completed its draft of a national action plan.
How long can Canada afford to stay behind some of these other countries in moving towards implementation?