I will start the meeting.
I want to recognize officially that we're on the unceded territory of the Algonquin people, an important fact and one that we try to remember and reflect on daily, as we're beginning a process of understanding the truth of our history of colonialism—apartheid here in Canada—and how we resolve the history through reconciliation.
We have a full agenda with two panels. We are talking about UNDRIP, the United Nations declaration and, of course, the provisions within it. It is a time for change in Canada, and I think that we're all privileged to be part of that positive change.
We are here pursuant to order of reference of Wednesday, February 7, 2018, studying Bill , an act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.
As presenters, you'll have up to 10 minutes, and after all the presentations are done we'll go into a series of questions from the MPs.
It looks as though my friends from the Prospectors and Developers Association of Canada are first on the agenda.
Welcome, and we look forward to your presentation.
Good afternoon, Chair and committee members.
I'd like to acknowledge that we are on the territory of the Algonquin Nation.
My name is Michael Fox. I'm from the Mushkegowuk Territory, from a community called Weenusk First Nation on Hudson Bay coast. I'm also an elected board member of the Prospectors and Developers Association of Canada, PDAC.
I'm joined by my colleague Lesley Williams, the director of policy and programs of the PDAC.
The PDAC is a national voice of Canada's mineral exploration and development industry, representing over 7,500 members. We work to sustain a vibrant and responsible mineral industry and ensure that Canada is the top destination for mineral investment so we can continue to make new discoveries that will become tomorrow's mines and generate significant economic opportunities for Canadians.
Thank you for the opportunity for me to be here today to provide input on behalf of the mineral industry in relation to aspects of Bill . Our comments will focus mainly on the evolution of the partnerships between the mineral industry and indigenous people in Canada. I particularly want to share the ways in which the on-the-ground activities of our sector demonstrate our leadership in indigenous engagement, which in our view are consistent with the spirit and principles of UNDRIP.
The mineral industry strongly supports the government's commitment to a renewed relationship with indigenous peoples. However, discussion of the process around UNDRIP proposed by Bill cannot be separated from the broader questions, such as what mechanisms would be used to achieve UNDRIP implementation in Canada and what it would look like in practice. While we do not have amendments to propose to the bill, we hope that sharing the story of our industry will provide a practical example of the indigenous community partnerships that exist in practice and in parallel to frameworks such as UNDRIP.
The value of Canada's mineral industry cannot be overstated. The mineral exploration and mining industry makes vast contributions to our country from remote indigenous communities to rural areas to large cities. It generates significant economic and social benefits for Canadians.
The relationship between indigenous communities and businesses in the mineral industry in Canada is a shared success story to be proud of. Our industry has made many advancements in all areas, in health and safety, the environment, and community participation, but we are especially proud of our leadership working with indigenous partners on engagement and participation. For all parties involved this has not necessarily been an easy journey. It remains a work in progress.
In recent decades the relationship has gone through a significant transformation, particularly as the landscape has evolved. Some might argue that the legal framework in Canada was the sole catalyst for creating an environment for companies to engage with indigenous communities. However regulations do not create relationships. I'll say that again. Regulations do not create relationships.
Companies are, of course, responsible for abiding by what is legally required, but it is increasingly understood and accepted industry practice that regulatory requirements are the minimum standards for operation. While they are necessary, they do not exactly translate into the development of meaningful partnerships. Mineral industry leaders realize that building partnerships with communities is critical to the success of their project, not because it's the right thing to do or because the law requires something, but because good partners lead to successful projects that benefit everyone.
The evolution we have seen in the mineral industry is unparalleled. More so than any other Canadian industrial sector the mineral sector has a proven track record of effectively working toward maintaining a positive and respectful relationship with indigenous communities. More importantly the result has been positive mutual benefits.
Proportionally the mineral industry is the largest private sector employer of indigenous people in Canada. We have seen over the last couple of decades markedly increased community participation in projects on a number of different levels, from project design, environmental assessment, employment, etc. We have witnessed increased industry awareness about indigenous people in Canada, specifically the history and unique cultures of local communities.
Mineral exploration and mining companies are also embracing indigenous traditional knowledge and are incorporating it while they seek input on their projects. In addition to the benefits of direct involvement in the exploration and mining companies, there has also been a proliferation of indigenous businesses that provide an expanding number of services to the sector, such as drilling, heavy equipment, camp catering, to name a few. Economic opportunities generated by mineral development have contributed improvements to the socioeconomic conditions of a number of communities, including investments in training initiatives and community development.
A key mechanism through which relationships and economic opportunities have been formalized in Canada is through community-company agreements. These voluntary agreements are increasingly recognized internationally as a leading practice. A significant number of agreements have been signed between companies and indigenous communities, with over 500 agreements signed since 1974, the majority within the last decade.
These agreements include various commitments, such as training and skills development, employment targets, contracting, joint venture provisions, community investments and development, environmental monitoring, and financial considerations. These agreements are a testament to the strength of commitment by the industry in developing mutually beneficial partnerships and to the interests of many indigenous communities and the economic development opportunities generated by the minerals sector.
Overall, a long-lasting, trusting partnership has been developed between the minerals industry and indigenous communities all across Canada, from early exploration to mine developments enclosure. These are positive, mutually beneficial relationships. You need to look no further than the Éléonore project in Quebec, Ekati in the Northwest Territories, or New Afton in British Columbia.
Despite the significant positive outcomes of company-community partnerships, the narrative that is, unfortunately, most prevalent is that there is widespread discord, which generates the perception that the nature of company-community interactions is adversarial. As I have demonstrated, this is not typically the case.
Relationships are complex, comprehensive, and constantly evolving. Naturally, challenges will arise, but these are not insurmountable. That said, there are larger public policy issues that have an impact on industry-community relations.
Numerous unresolved issues exist across Canada related to jurisdiction and land claims. While matters of jurisdiction are strictly negotiated between the crown and indigenous people, these challenges can generate a sense of uncertainty. Often industry can be caught in the middle of jurisdictional issues that are not within its control.
Ongoing socio-economic conditions for many indigenous communities remain dire and we can all agree require immediate action. Foundational investments that contribute to the improved quality of life for communities are needed. Challenges related to health, education, housing, etc., can impact the ability of indigenous people to participate in mineral projects and to fully realize opportunities generated by the industry. Furthermore, ambiguity and complexity related to the crown's duty-to-consult processes has resulted in delayed projects, increased costs, investor uncertainty, and negative impacts on company-community relationships.
PDAC's cross-country research identified some key, overarching challenges with the way in which federal, provincial, and territorial governments implemented the duty to consult. Some of these include the trigger for consultation in its scope; the process for identifying impacted communities; roles and responsibilities, including delegation to proponents; the crown's role in consultation costs; the timeline for the process; and defining accommodation.
Government has committed to renewed relationship with indigenous people. This has encompassed a commitment to implement the calls to action of the Truth and Reconciliation Commission, a review of laws and policies, and the creation of a recognition and implementation of the rights framework. These actions are a positive step towards addressing some of the policy challenges I have raised.
These are not small tasks. There is a lot of work to be done. We applaud these efforts by the government in taking interest in how crown and indigenous relations will evolve. Meanwhile, the minerals industry will continue to be a leader. It will put into practice principles of engagement, and will reflect respect for indigenous rights, relationship building, and partnership development on the ground at exploration mining sites across Canada.
A strong, global, comparative Canadian exploration mining sector will be well positioned to deliver local, regional, and national benefits. As I have outlined here, it is the cornerstone of this strong, trusting relationship between companies and indigenous communities that results in mutual benefits.
Thank you. Meegwetch.
, and good afternoon, Madam Chair and members of the committee.
I would like to begin by acknowledging the Algonquin and the Anishinaabeg peoples and thank them for allowing us on their unceded traditional territory, with special acknowledgement to the indigenous women and their families for whom NWAC exists.
Thank you for the invitation to share the Native Women's Association of Canada's perspectives on Bill , which proposes an act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples. NWAC is in full support of this bill and all the implications that come with it.
The United Nations Declaration on the Rights of Indigenous Peoples does not create new laws or rights. It enhances the existing rights of indigenous peoples and holds the Government of Canada accountable for ensuring respect to first nations, Inuit, and Métis communities. It also emphasizes that indigenous peoples have the right to self-determination. What this bill sets out to do is implement the inherent human rights that indigenous peoples have and to enforce those rights within the Canadian legal system. Indigenous people should not only be consultants of the government but also participating members of all decision-making. This is not about saying yes or no; it's about creating equal and inclusionary negotiations.
At the end of my remarks, I will be making recommendations specific to the needs and issues of indigenous women, but overall, Bill is a good first step towards a better and stronger partnership between the federal government and indigenous authorities.
Indigenous women exist at the intersection of multiple forms of discrimination tied to gender, race, and colonialism. As a result, indigenous women face many barriers and obstacles to accessing their basic human rights. A fundamental human right is the right to education. We are seeing indigenous women and girls with lower levels of education than the rest of the Canadian population as well as with less access to adequate education. Often this can be attributed to poverty and discrimination based on geographic location.
There is a growing number of the indigenous population who identify as having a disability or functional limitation, especially first nations women living on reserves. As a triply marginalized group, indigenous women with disabilities face systemic and structural barriers that are not typically faced by non-indigenous and able-bodied Canadians.
There's a lack of culturally appropriate services available to indigenous women, whether they are health services or social services. Health care is a human right, and being culturally sensitive and trauma informed is crucial to delivering those services in a way that doesn't re-traumatize or cause further harm to our communities.
Social, political, and economic marginalization of indigenous women limits access to necessary and appropriate supports and services that reduce the impacts of poverty. Housing is a necessity, and indigenous women are more susceptible to homelessness, poverty, and violence. The most successful method of combatting poverty is empowering women through increased employment, access to education, access to health care, protection of cultural practices, and fostering socio-economic autonomy.
As activists and grassroots women have highlighted for decades, indigenous women and girls and gender-diverse people continue to experience discrimination on multiple grounds and in various forms. In terms of violence, indigenous women and girls 15 years and older are three to five times more likely to experience violence. Indigenous women have reported fearing for their lives over the last few decades at a much higher percentage than non-indigenous women and are also more likely to be murdered by strangers than non-indigenous women.
Canada's national inquiry into missing and murdered indigenous women and girls is currently hearing first-hand accounts that provide a heartbreaking foundation to these statistics through the stories told by the families and loved ones of our murdered and missing sisters. I mention this to highlight that everyone in Canada has a charter-guaranteed right to life, liberty, and security of person, and we must do everything we can to ensure that this becomes a reality in the lives of indigenous women rather than remaining a mere paragraph in a government document.
In Canada, indigenous peoples continue to be overrepresented in the correctional system. According to Correctional Services Canada, indigenous women, who represent only 4% of the female population in Canada, make up to 41% of women in sentenced custody. This is a clear link to systemic discrimination based on racial, cultural, and colonial prejudices that need to be identified and scrubbed from our legal and judicial system. Everyone has the right to a fair trial and equal treatment under the law.
The correctional system isn't the only one that sees staggeringly high percentages of indigenous peoples. Child and family services is the other. Over 50% of children within the child welfare system are indigenous. Currently there are more indigenous children in care than at the height of residential schools.
As per article 2 of UNDRIP, indigenous women will be recognized as equal to all men and women. Article 22 builds on this, cementing that the government must ensure that all indigenous women and girls can access their human rights and fundamental freedoms in all political, social, economic, and cultural contexts.
Article 18 ensures that indigenous women have the freedom and right to participate in all decision-making matters that would affect their rights. As you can imagine, this is a particularly important article for NWAC because it reflects what we have been fighting for since our inception in 1974.
Articles 6 and 9 refer to the right to a nationality and the right to belong to an indigenous community or nation in accordance with their traditions and customs. As countless studies have found, and as indigenous peoples have been saying for as long as colonialism has existed, self-determination is a key part of empowering indigenous communities.
Finally, to ensure that Bill leads to the full and effective harmonization of Canadian law with UNDRIP, we recommend the following: one, development of a mechanism that will ensure accountability and consistency; two, a commitment to ensure that language is inclusive and will reflect the rights, respect, and co-operation of indigenous women and LGBTQ2S; three, the recognition of the intersection of multiple forms of discrimination tied to gender, race, and colonialism; four, going beyond UNDRIP by including the specific needs and issues of the diverse indigenous communities in Canada—this includes a specific distinctions-based approach that recognizes the diversity amongst and between first nations, Inuit, and Métis communities.
Thank you for your time. Kukwstsétsemc. Meegwetch.
Madam Chair, I'll be doing this in French, if anyone needs the earpiece.
Members of the committee, I am joined today by Francis Walsh, a member of our committee on the law and indigenous peoples, as well as Julien Pelletier-David, our special adviser on access to justice.
We are very grateful for the opportunity to share our views on Bill with the committee.
The Barreau du Québec supports this important bill, which seeks to harmonize Canada's laws with the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly on September 13, 2007 and signed by Canada on November 12, 2010.
This international instrument is the result of a lengthy process that began in the 1970s. It provides guidelines to states, the UN, and other international organizations on how to build harmonious relations with indigenous peoples based on the principles of equality, partnership, good faith, and mutual respect.
However, it merely represents a political commitment on the part of the states who voted in its favour.
Given that the declaration, itself, is not legally binding, provisions outside the realm of customary international law must be incorporated into domestic law in order to take full effect. This requires legislative measures. What's more, given that we have two levels of government, each must implement the declaration in accordance with its constitutional authority. Co-operation is therefore essential to the declaration's successful implementation. Keep in mind that full implementation hinges not only on good faith and legislative measures, but also, and above all, on funding.
The Barreau du Québec has repeatedly expressed its support for the adoption of the UN Declaration on the Rights of Indigenous Peoples, and we are here today to reiterate that support. Bill is hugely important to the advancement of the rights of indigenous peoples in Canada and should provide the normative framework for the policies that the Canadian government needs to adopt swiftly in its efforts towards reconciliation.
We believe that respect for the fundamental rights of indigenous peoples is a priority. Crime, victimization, and incarceration rates among indigenous peoples are appalling; in Quebec, the communities in Nunavik are especially affected. When the number of criminal records in a community nears or exceeds the size of its population, the question we need to be asking is where and how has the justice system failed to bring that number down. The question is not how many additional resources the system needs to handle the cases.
The Barreau du Québec is of the view that the way in which the justice system treats indigenous peoples is untenable. Back in 2013, the Barreau was criticizing the glaring lack of resources in northern Quebec. Working in the region, the Barreau came to the unequivocal realization that the gap between the justice apparatus and the indigenous communities it was supposed to serve was ever-growing. We are fully aware that the problem is not limited to Quebec, with all provinces plagued by the same issues. Too little has changed thus far.
All too often, the justice system is used to deliver a front-line response, taking the place of basic services. The significant lack of social, medical, and prevention-based resources creates a void that is filled by the justice system. Courts are frequently called upon to address the socio-economic failings. What's more, all of these services must make up for decades of trauma inflicted on communities.
The Barreau du Québec recently appeared before Quebec's public inquiry commission on relations between indigenous peoples and certain public services, in Val-d'Or, and made 36 recommendations to improve the situation. One of those recommendations was that Quebec adopt the UN Declaration on the Rights of Indigenous Peoples, as Canada is currently doing. We also proposed ways that the justice system could meet the needs of indigenous people.
Daunting though the challenge may be, it is nevertheless clear that every effort must be made to give Canada's indigenous communities maximal autonomy over their system of justice. Part of that is creating indigenous law institutes, as the Royal Commission on Aboriginal Peoples recommended in its report more than 20 years ago.
This endeavour requires far more than just cosmetic changes. A comprehensive reform is needed, and we are well aware that such a reform hinges on the clear political will of all stakeholders, not to mention adequate financial and human resources.
The Canadian government signed the UN Declaration on the Rights of Indigenous Peoples, committing to its full implementation in Canadian law. To that end, it is time for the government to turn its attention to the urgently needed changes that the country's indigenous people are owed. The declaration requires states to recognize the right of indigenous peoples to maintain their traditions, their legal customs and, where they exist, their systems of justice. Every level of government must exercise their constitutional authority and take appropriate action.
Openness, vision, creativity, and humanity must guide the eventual process of establishing legal systems that are truly tailored to the needs of indigenous peoples.
Simply passing Bill is not enough. In order to implement the UN Declaration on the Rights of Indigenous Peoples, the government needs to undertake a comprehensive review of Canadian laws and amend them accordingly. The Barreau du Québec applauds the creation of the working group of ministers on the review of laws and policies related to indigenous peoples and hopes that this long-awaited endeavour will bring real change. Still, there is no doubt that this bill is highly symbolic and meaningful, illustrating the government's commitment to implementing the declaration. Not only is it the first step towards implementation of the declaration, but it is also a step towards reconciliation.
In short, we urge the government to put the necessary measures in place to ensure harmony between Canada's laws and the UN Declaration on the Rights of Indigenous Peoples. This endeavour could ultimately lead to a more effective and equitable justice system for all Canadians. Bill is but the first step in the long road ahead.
I want to conclude by saying that the Barreau du Québec realizes just how much work lies ahead and extends its full co-operation in this essential effort towards reconciliation.
It is now my pleasure to turn the floor over to Mr. Walsh.
I'm going to spend my few short minutes to Mr. Fox. I did appreciate your comment in terms of the New Afton mine because, of course, we know there has been a good agreement put in place in terms of royalty sharing, benefit agreements, and employment opportunities. Actually, the most fascinating is some of the work they're doing around bat habitat protection and the partnership that they have there.
Clearly, from the mining perspective and the projects like Prosperity and Ajax, they did not have community indigenous support and those projects were turned down. The jurisprudence, I think, is getting pretty clear. I keep going back to the same thing because I'm not yet satisfied with the answers I'm getting.
If we go from the current jurisprudence that we have to the new free, prior, and informed consent, and I'm going to use Kinder Morgan again because it's very close to mind right now, some of the NDP representatives have said that every single community impacted must give consent or it is a veto and cannot go ahead.
From your understanding of this legislation, if they move forward to a new framework that does not consult and accommodate, which for mining essentially means consent, but perhaps for a cross-boundary project means there are times where someone ultimately has to make a decision, are we potentially heading into more litigation and more confusion? Do you have any comments on that?
Good afternoon. I am the daughter of Sarah Jane and Richard Preston and the mother of Sarah Jane Howe. I was born in the territory of the Leni Lenape, and I spent significant time in my childhood in Cree territory. I now live in traditional Anishinabek and Haudenosaunee territory.
Canadian Friends Service Committee, CFSC, is the justice and peace organization of the Religious Society of Friends, Quakers. As a faith body, Quakers have been working for peace and justice for centuries. Quaker service organizations were awarded the Nobel Peace Prize after the Second World War for our commitment to justice and peace. Quakers are what is called a “historic peace church”. Our peace testimony is at the root of our faith. Peace and justice are interlinked. We cannot be at peace where there is injustice.
I am not indigenous, and I do not represent an indigenous constituency. However, when human rights are violated, we all need to be concerned. When indigenous peoples' human rights are affirmed and promoted, we are all winning. In our view, the UN declaration is a good news story. Bill is vitally important to non-indigenous people in Canada.
For the past two decades, my professional work has focused deeply on the UN Declaration on the Rights of Indigenous Peoples, first, in the international processes where it was developed and adopted, and then, for the past decade, on implementation. As someone with a long history of experience and expertise with the declaration, I have published extensively on the subject, including co-editing a book entitled, The UN Declaration on the Rights of Indigenous Peoples : Triumph, Hope, and Action. I am often invited to present on the declaration to diverse audiences and am delighted to be here today.
CFSC fully supports Bill , and we urge all members of Parliament to adopt it in a non-partisan manner. I gave much thought about what I should share this afternoon. You have heard already from many witnesses, and I don't wish to duplicate the efforts of others. At the same time, there are some elements surrounding Bill C-262 that are worth repeating. Indigenous peoples went to the UN to negotiate the declaration because they did not have justice in a domestic context. This is the most discussed human rights instrument in the history of the UN, and Canada played a significant role. Indigenous peoples did this work to ensure that changes would occur on the ground.
In the decade since the UN General Assembly's adoption, there have been pockets of interesting work on implementation accomplished mainly by indigenous peoples themselves, but it is overwhelmingly evident to those of us who work intimately with the declaration that we need the national legislative framework that Bill provides.
For many faith bodies, including Quakers, the work of the Truth and Reconciliation Commission was critically important, and it created a watershed moment in this country. As you know, the Indian residential school system was part of the destructive forces of the colonization of Canada. The exemplary work of the TRC informs us of both the journey and the legacy of colonization.
What did we learn? The truth. We learned about the sexual, physical, and spiritual abuse. We learned about the widespread dispossession of land. We learned about the attempted destruction of traditional governance and legal structures; religious conversion; and attempts at forced assimilation, including the prohibition of languages, traditional culture, and spiritual practices. We learned about the racist and sexist Indian Act, much of which is still in effect. We learned about the secondary consequences associated with loss of culture, language, and identity, including intergenerational trauma. The TRC and the former chief justice of the Supreme Court of Canada, Beverley McLachlin, concluded that this constituted cultural genocide.
What does the TRC suggest to move forward now? What is reconciliation? I'm going to read a quote from a report released by the TRC entitled “What We Have Learned: Principles of Truth and Reconciliation”:
||...“reconciliation” is about establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country. For that to happen, there has to be awareness of the past, acknowledgement of the harm...atonement for the causes, and action to change behaviour.
I very much concur with call to action 43 that the United Nations Declaration on the Rights of Indigenous Peoples is the framework for reconciliation. It can also be described as the blueprint. Former UN secretary-general Ban Ki-moon called the declaration the “road map” for reconciliation. The TRC very skilfully wove the UN declaration through their work. Sixteen calls to action refer specifically to the declaration. Any attempts to undermine the UN declaration are also striking at reconciliation.
This brings me to Bill . This bill creates a legislative framework to ensure that we do indeed implement the UN declaration, not just talk about it.
The TRC concluded that a refusal “to respect the rights and remedies in the declaration will serve to further aggravate the legacy of residential schools, and will constitute a barrier to progress towards reconciliation”.
Bill offers Canada a crucial opportunity to move from a colonial framework that dispossessed indigenous peoples to become a nation-state that acknowledges the harm, atones for the causes, and commits to change.
Bill provides the federal government with the framework to create a paradigm shift that we so urgently need to move away from colonization.
This week, perhaps later today, the national leaders of many churches in Canada, including those that ran residential schools, are writing to leaders of all political parties to urge non-partisan support for Bill . Many faith bodies have been actively championing the declaration and Bill . Why? As people of faith we are committed to peace and justice. We recognize the injustice we have been a part of, and we are committed to change. We are committed to the deconstruction of power structures that have and continue to oppress indigenous peoples.
Change can be difficult or even scary. Of course, I am aware of the fear that has been generated around both the declaration and this bill. My analysis is that this fear is rooted into hanging onto colonial constructs of power and perpetuating domination and exploitation.
Last spring when I was on a speaking tour in northern British Columbia on both the declaration and on FPIC, I gave an interview to CBC North. The interview included questions around the fear, and finally I said, “No, Chicken Little, the sky is not falling.” Clearly I was being glib, but the point is we have to let go of these unfounded fears. We need to embrace implementing the declaration through Bill as something we can all be proud of as we move forward into a new reality that's based on a contemporary human rights framework and not on colonialism.
Members of this committee have questioned other witnesses about FPIC, and I'm not going to go into detail on that. I am aware that Paul Joffe will be covering that later this afternoon. However, I wish to reiterate that FPIC was not created in the declaration; it is well established in international law, and Canada already has an affirmative legal obligation to respect FPIC.
I do have a possible addition to the preamble to further entrench the importance of reconciliation. The text could be something as follows:
||Whereas, as concluded by Canada's Truth and Reconciliation Commission, the declaration provides the necessary principles, norms, and standards for reconciliation to flourish in a 21st century Canada.
Senator Murray Sinclair informed us that truth was hard and reconciliation would be harder. At the closing events of the TRC, he also instructed all of us, “We have described for you a mountain. We have shown you a path to the top. We call upon you to do the climbing.”
Over the past two decades occasionally people asked me why Quakers are so committed to this work. The answer is simple. There is no peace without justice.
I want to thank you for inviting the United Steelworkers to speak with you today.
My name is Pat Van Horne. I'm the legislative representative for the union, and I'm based here in Ottawa. I've also brought with me, in the peanut gallery, a number of our members who are here this week talking to MPs on another important issue, which is retirement security, but we won't talk about that now. I'm also here on behalf of our national director Ken Neumann, who could not join me today.
The United Steelworkers represent over 180,000 women and men employed in all sectors of the Canadian economy right across the country. Many of our members are indigenous peoples—first nations, Métis, and Inuit. Many are employed, for example, by Cameco, at the uranium mines in Saskatchewan; the Vale nickel mines in Voisey's Bay, Labrador; Glencore's Raglan Mine in northern Quebec; in logging and sawmills from Ontario to B.C.; at the Frontier School Division in northern Manitoba; and many other places.
USW has a long history of struggle for social justice and human rights for working people, their families, and their communities. Today, along with many Canadian organizations and institutions, which include unions, we are taking active steps to work toward reconciliation and full recognition of the rights of indigenous people.
Our support for Bill is based on an official policy position adopted by USW members in 2016, and it reflects their deep concern as citizens, co-workers, and community members from all walks of life in all parts of the country, over the unjust and racist history of Canada's treatment of indigenous peoples.
We also have within our union an aboriginal people's committee, which meets regularly and brings issues to the larger union.
The adoption of Bill would be a powerful affirmation of Canadians' collective desire to do better and engage in genuine reconciliation with first peoples. More than that, Bill C-262 would provide a practical, rights-based path that Canada must follow in order to ensure that reconciliation is comprehensive, far-reaching, and uncovers and redresses the colonial legacy embedded in Canada's legal, economic, political, and other systems, which, I dare say, includes our economic relationships with employers.
The rights-based approach of Bill is a key part of efforts to address crisis in many indigenous communities and among many indigenous people in Canada's urban areas. This crisis includes, as has been mentioned many times, inadequate education, health, child welfare, and housing. It includes gender-based violence, poverty, and the loss of language and cultural identity. These are big jobs to do, but I think Canadians are up for it, and this bill would help.
If properly implemented, Bill would help ensure that there is a comprehensive, consistent legal framework based in international law within which indigenous communities can work with private, non-state actors to arrive at equitable arrangements for resource and community development. In fact, the representative from PDAC alluded to that in his presentation.
The USW would never accept a mine design that was unsafe. The USW would never accept a mining operation based on the harassment or exploitation of workers and their families, or a mine constructed without environmental safeguards preventing the poisoning of local communities. Health and safety has been one of our major thrusts throughout our history and particularly over the last 25 years since the Westray mine explosion. Likewise, the USW can no longer accept mines built without consultation and participation of indigenous rights-holders in decision-making, in violation of UNDRIP. That, of course, means free, prior, and informed consent, among other things.
The USW is not concerned that the adoption of Bill would somehow paralyze resource development in Canada. On the contrary, the implementation of Bill C-262 would help ensure that the Canadian legal system offers a clearer framework for balancing rights and a more certain basis on which resource development decisions can be made. In our experience, when indigenous communities feel secure in their rights, they are quite prepared to entertain appropriate proposals, including partnership for resource development, collective bargaining, and other issues.
My final comment is simply that processes like this one, Bill , to make human rights meaningful in a relationship fraught with racism and exploitation, in a framework of colonialism, will help organizations like the United Steelworkers to become instruments of reconciliation, where solidarity is the guiding principle.
Thank you for your attention, and I'm happy to answer any questions.
Good afternoon, honourable committee members. I'm pleased to be on the unceded traditional territory of the Algonquin people and to have this opportunity to appear before this distinguished committee.
I commend the committee for examining Bill , the short title of which is the United Nations Declaration on the Rights of Indigenous Peoples act.
A strong bill, when adopted, will make a significant contribution to national reconciliation and the Truth and Reconciliation Commission's calls to action. In particular, I wish to acknowledge the determination of MP Romeo Saganash in bringing Bill to this critical juncture. His accomplishments to date are all the more significant since he is the only indigenous MP who is a residential school survivor.
Let's begin with the living tree doctrine. Aboriginal rights affirmed in section 35 of the Constitution Act, 1982 are subject to progressive interpretation. This is consistent with the living tree doctrine that applies to Canada's Constitution. As decided by Canada's highest court in 1984 in Hunter et al. v. Southam:
|Once enacted, [the Constitution's] provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.
The UN declaration constitutes a new social, political, and historical reality, a consensus human rights instrument that elaborates on the rights of indigenous peoples globally. As the Supreme Court indicated in Reference re Same-Sex Marriage, “A large and liberal, or progressive, interpretation ensures the continued relevance and, indeed, legitimacy of Canada’s constituting document.”
My next point emphasizes that indigenous peoples' rights are human rights. Mr. Saganash has repeatedly emphasized in Parliament and in this committee that indigenous peoples' rights are human rights. This crucial characterization is beyond question. Successive federal governments, both Conservative and Liberal, have confirmed to the United Nations that the aboriginal and treaty rights of indigenous peoples in Canada are human rights in Canada's domestic legal system. For over 35 years, indigenous peoples' inherent rights have been addressed within the UN human rights system. Therefore, all governments, business entities, academics, and others in Canada should recognize the human rights quality of indigenous peoples' rights.
In Tsilhqot’in Nation v. British Columbia from 2014, the Supreme Court of Canada underlined that the Canadian “Charter forms Part I of the Constitution Act, 1982, and the guarantee of Aboriginal rights forms Part II.” The court went on to say, “Parts I and II are sister provisions, both operating to limit governmental powers, whether federal or provincial.”
In the 1987 Reference Re Public Service Employee Relations Act case, which was in Alberta, chief justice Brian Dickson emphasized that declarations and other sources of international human rights law “must...be relevant and persuasive sources for interpretation of the [Canadian] Charter's provisions.” In other words, if international declarations are being applied to interpret human rights in part I of the Constitution Act, 1982, then the same must be true for indigenous people's human rights in part II.
Thus it is essential that subclause 2(2) of Bill affirm:
||Nothing in this Act is to be construed as delaying the application of the United Nations Declaration on the Rights of Indigenous Peoples in Canadian law.
As confirmed in Canadian and international law, indigenous peoples' rights are inherent or pre-existing. In the absence of subclause 2(2), some people might claim that the rights in the UN declaration would not apply until the collaborative processes in clauses 4 and 5 of the bill determined the nature and scope of such rights.
Now let's turn to the important issue of consent versus veto. FPIC, or free, prior, and informed consent, is not created by the UN declaration. The declaration affirms and elaborates upon existing rights; it does not create any new rights. The term “veto” is not used in the UN declaration. Veto implies an absolute right, that is, no taking into account the facts and law in each case. There is no balancing of rights. This is neither the intent nor interpretation of the UN declaration, which includes some of the most comprehensive balancing provisions in any human rights instrument, especially article 46(3) which indigenous representatives negotiated with Canada.
Consent is an essential element of the right of all peoples to self-determination. This right is included in identical article 1 of the two international human rights covenants that Canada ratified in May 1976. FPIC and international law have the same meaning as consent in Canadian law. In both cases, if there is duress, there is no valid consent. The same is true if consent is sought only after a project is initiated or if the information provided is inadequate or misrepresented.
At the international level, the application of FPIC to indigenous peoples is supported by the UN General Assembly, the UN Secretary-General, the Office of the High Commissioner for Human Rights, UN treaty bodies, specialized agencies, UN special rapporteurs, the UN Permanent Forum on Indigenous Issues, and the UN Expert Mechanism on the Rights of Indigenous Peoples. None of these entities, bodies, or mechanisms describe FPIC as a veto.
The same is true for the Inter-American Court of Human Rights and the African Commission on Human and Peoples' Rights. Consent must include the option of withholding consent. This conclusion clearly makes sense. It would be absurd to conclude that indigenous peoples have the right to say yes, but not the right to say no, even in the most damaging circumstances.
With a view to ensuring co-operative and harmonious relations, I respectfully propose three amendments to Bill for your consideration.
With regard to the first amendment, the current title of Bill does not fully reflect all of the matters addressed. Thus, I propose the title, “An Act to implement the United Nations Declaration on the Rights of Indigenous Peoples and promote reconciliation”.
My next two amendments would fit nicely at the very beginning of the preamble.
The following new paragraph reflects the wording of both the UN Expert Mechanism on the Rights of Indigenous Peoples and the UN Permanent Forum on Indigenous Issues, and would read as follows: “Whereas implementation of the United Nations Declaration on the Rights of Indigenous Peoples constitutes a principled framework for justice, reconciliation, healing, and peace;”.
Finally, my third amendment just reflects the 18th preambular paragraph of the UN Declaration, and reads as follows: “Whereas affirmation of the rights of Indigenous Peoples in that Declaration will enhance harmonious and cooperative relations between Canada and Indigenous peoples;”.
I realize I have a little bit of time.
Yes, it's true. The Supreme Court has said, as I said, in 1987 and since then they've affirmed that international declarations are relevant and persuasive sources for interpreting human rights in Canada. So there's no question. But it goes farther than that.
First of all, indigenous governments, the federal or provincial governments, and all the human rights commissions in Canada under CASHRA, which is the umbrella group, support the UN declaration. People are free to use the declaration.
The benefit of having legislation is, first of all, that this legislation creates collaborative processes. That's always been a problem. When it isn't collaborative and legislators do things alone, unfortunately throughout Canada history has shown that there's been colonialism, there hasn't been an understanding, the problems have been entrenched in legislation, and we haven't gotten anywhere.
In terms of the recognition and rights framework—to be very quick—we'll have to see what that includes, but of course it fits with Romeo's bill. It's another step.
The way you implement the UN declaration in Canada, though, is not just to adopt Bill . It's to integrate it in your various pieces of legislation. That way no one can say there's uncertainty. Let's say you're dealing with indigenous languages. If you fit it into, let's say, the preamble, the reference, or whatever, and show how it's going to be used and how it's going to reinforce the objectives of all legislators, that would help. It should be done with the proposed impact assessment act, Bill. It should be done with Bill . That way you not only create consistency but you also avoid uncertainty and meet the legislators...whatever.
I don't want to take their time.