Chairman Mihychuk, vice-chairs McLeod and Saganash, committee members, representatives, and guests, I am National Chief Robert Bertrand of the Congress of Aboriginal Peoples—in other words, CAP.
I am pleased to be with you all today and wish to acknowledge that we are on the traditional and unceded territory of the Algonquin peoples.
The teachings and wisdom of our ancestors are essential for guiding our work and our discussions today.
I would like to recognize NDP MP Romeo Saganash for his dedication and perseverance in advancing Bill C-262 and commend the Liberal government for its full support of this crucial bill. Enshrining the principles set out in the UN declaration in Canadian law is a momentous step toward genuine reconciliation and safeguarding the individual and collective human rights of all indigenous peoples in Canada.
For over 47 years, CAP has committed itself to advocating for the rights and needs of the off-reserve status and non-status Indians, Métis peoples, and southern Inuit, the majority of whom live in urban, rural, and remote areas. CAP also serves as the national voice for its 11 provincial and territorial affiliates, which are instrumental in providing us with a direct connection to the priorities and needs of our constituents.
From coast to coast, the provincial and territorial affiliates of the Congress of Aboriginal Peoples play a leading role in providing us with direct access to the needs and interests of our fellow citizens.
Since Canada's full endorsement of the UN declaration, our people have been questioning what this means, what impact UNDRIP will have, and what the future now holds for them. During this time, we also witnessed Canada's commitment to advancing reconciliation, the TRC's 94 calls to action, and a renewed relationship with indigenous peoples based on recognition and implementation of indigenous rights.
As citizens of this country, we have come to recognize that to move forward together we need to have true reconciliation between all indigenous peoples, non-indigenous Canadians, and all levels of government. However, Canada's proclaimed renewed relationship with indigenous peoples and vision to achieve reconciliation has seemingly extended itself in a distinction-based approach to a select number of the five national indigenous organizations recognized by the Government of Canada.
Disguised as reconciliation, this approach is a strong indicator of the desire on the part of the federal government to simplify its political interface with indigenous peoples. This lends itself to creating a culture of exclusion, division, and inequality. One could argue that it further perpetuates competition for social, political, and economic interests amongst indigenous groups, communities, and families. As was done through the Indian Act, which created eligibility rules that classified status Indians as Canada's legitimate Indians for public policy purposes, Canada continues to justify its exclusionary relationship through public policy and law.
The federal government continues to pose the question: Who are non-status Indians? They are Indians who were ultimately forced into an identity category of the government's own creation. As of the 2016 census, non-status Indians—some 232,000 indigenous people—now account for nearly a quarter of the first nations population in Canada.
A great number of our constituents are skeptical that any significant changes would ensue as a result of UNDRIP and Bill , as their voices have largely been ignored in terms of political recognition and engagement in policy development on substantive issues that affect them.
Certainly, the inherent rights expressed in the UN declaration are not exclusive or limited to federally recognized status Indians or indigenous peoples who live on reserve in Inuit Nunangat or the Red River Settlement.
Canada's ongoing unilateral decision-making on behalf of non-status Indians and the urban indigenous peoples must come to an end, as it is a direct violation of their fundamental human rights in UNDRIP.
Our constituents are the most vulnerable and marginalized of all Canadian citizens, who have and continue to fall through the jurisdictional and legislative cracks. In 1972, the Secretary of State for the Government of Canada submitted a confidential memo to cabinet showing that Canada was well aware that the Métis and non-status Indians were far more exposed to discrimination and other social disabilities and were the most disadvantaged of all Canadian citizens, living in circumstances that were intolerable, judged by the standards of Canadian society. Over 45 years later, we must ask ourselves why this situation remains the same.
For years, both federal and provincial governments in Canada have denied having legislative authority over Métis and non-status Indians, the federal government under the justification that subsection 91(24) of the Constitution has precluded them from doing so, and the provincial governments on the basis that the issue is a federal one. This has left many Métis and non-status Indians in what the Supreme Court of Canada has characterized as “a jurisdictional wasteland with significant and obvious disadvantaging consequences”. Justice Michael Phelan acknowledged that these consequences produced a large population of collaterally damaged people as the result of their being deprived of programs, services, and intangible benefits, recognized by all governments as needed.
In 1999, CAP addressed a crucial stalemate directly by launching a legal challenge in Daniels v. Canada. On April 14, 2016, after a 17-year court battle, the Supreme Court issued an unanimous decision on Daniels, declaring that the Métis and non-status Indians are Indians under subsection 91(24) of the Constitution Act of 1867. This landmark ruling confirmed that Canada is constitutionally responsible for the Métis and non-status Indians. It also affirmed that the federal government has a fiduciary relationship with the Métis and non-status Indians just as it does with status Indians and has a duty to consult and negotiate with them on matters that affect them.
In the Supreme Court's decision on Daniels, Supreme Court Justice Rosalie Abella stated:
||As the curtain opens wider and wider on the history of Canada’s relationship with its Indigenous peoples, inequities are increasingly revealed and remedies urgently sought. Many revelations have resulted in good faith policy and legislative responses, but the list of disadvantages remains robust. This case represents another chapter in the pursuit of reconciliation and redress in that relationship.
The Daniels decision, in addition to the application of UNDRIP and Canadian law, has the potential to transform the relationship between Canada, Métis, and non-status Indians, and help shape the framework, including new legislation to recognize and implement indigenous rights in support of its commitment toward reconciliation with indigenous peoples.
As of today, two years following the decision, Canada remains an inactive partner in engaging CAP on Daniels. CAP, and by extension, the voices of the Métis and non-status Indians continue to experience exclusion from crucial discussions with the Canadian government that impact the rights and the lives of our constituents.
Bill would require the federal government to take all necessary measures to ensure that the laws of Canada are consistent with UNDRIP and develop a national plan to do so in consultation and co-operation with indigenous peoples.
This concludes my remarks this afternoon.
Thank you very much. Meegwetch.
Thank you, Madam Chair. Good afternoon to you, to your vice-chairs, and to all honourable members at this table.
A special welcome goes to Ms. Yvonne Jones, with whom I'm very familiar as my member of Parliament, and who is also a distant relative. We know each other, being indigenous in this country. We know who each other's families are, their histories, their loves, their wants, their needs. It's a peculiarity about indigenous peoples that is sometimes missed that our nations are very close. It's an important fact when we talk about the issues that are important to us.
My name is Todd Russell, and I am a proud lnuk. I am here today on behalf of the NunatuKavut Community Council and I represent the southern Inuit.
Let's begin by acknowledging that we are on the unceded traditional territory of the Algonquin people. I hear this a lot. For some these may be mere words, but it is a profound fact, and that fact comes with meaning. Some of that meaning is embedded in Bill .
It is important to understand not only this fact but who it is you're speaking with. When I speak, I speak on behalf of the southern Inuit, and I look at Bill C-262 through our lens. NunatuKavut means "Our ancient land." It is the territory of the southern Inuit who reside primarily in southern and central Labrador. Our people have lived in their traditional territories since long before Europeans set foot on our soil. As it was in times of old, and despite centuries of colonialization, we remain deeply connected to the land, sea, and ice that make up NunatuKavut, our home.
While we have never surrendered our rights or title to our land, the Government of Canada has never fully respected our rights and has not lived up to its constitutional obligations to recognize and protect who we are and the lands we occupy. Our concerns have often been ignored when it comes to resource development in our territory, and after decades of work we are still waiting for Canada to finally accept our claim for negotiation.
Bill provides us an opportunity to move past this colonial relationship and to enshrine our rights to our lands and to have them recognized and protected.
Let's look at the intent of Bill .
I want to thank Mr. Romeo Saganash, MP for Abitibi—Baie-James—Nunavik—Eeyou, for introducing this bill. Its intent is to ensure that all federal laws are consistent with principles in the United Nations Declaration on the Rights of Indigenous Peoples, as described in clause 4 of the bill.
What does this actually mean? In December 2017, Mr. Saganash provided some clarity around the intention of the bill when he recommended that it be referred to this committee. He said:
|| Bill C-262 would also allow us to begin to redress the past wrongs, the past injustices that were inflicted on indigenous people. This is the main objective of Bill C-262, to recognize that on one hand they are human rights but on the other hand that we begin to redress the past injustices that were inflicted on the first peoples of this country.
||One of the things that we can do in the name of reconciliation is to adopt this framework that I am proposing through Bill C-262. I do not need to remind members that the world is watching.
While we are supportive of the bill and the intentions behind it, there is still much uncertainty as to what this legislation will actually do and how implementing it will affect the Inuit I represent. We also have concerns about whether the bill goes far enough for the recognition, protection, and implementation of the rights of indigenous peoples. We are, however, encouraged by the Government of Canada's support for the bill.
We note the following words from Ms. Yvonne Jones, parliamentary secretary to the minister of INAC, in support of the bill during second reading. Ms. Jones said:
|| Bill C-262 proposes a process of dialogue and the development of an action plan aimed at ensuring consistency between federal law and the declaration. Such an approach would be consistent with other ongoing processes, including the review of laws, policies, operational practices, and the permanent bilateral mechanisms that are in place.
Clearly the government's intention is to facilitate that dialogue, that process, and an action plan aimed at ensuring that Canadian laws are consistent with the United Nations declaration, and indeed that Canadian laws are aligned with Canada's commitments under the declaration.
In this regard there is much to be done, and it cannot be done in isolation. Comprehensive legislation and policy changes affecting indigenous peoples must be done in partnership with indigenous nations across Canada. The Inuit of NunatuKavut must be part of that process in a nation-to-nation relationship with the federal government.
This bill must also be viewed through the lens of the Truth and Reconciliation Commission's calls to action, which speak directly to this declaration. In fact, this bill is a direct response to call to action number 43. The federal government has clearly indicated its commitment to implementing these calls to action, and implementation of the declaration is a critical part of this work.
The TRC specifically addresses reconciliation as relationship. As the first of its 10 principles states, “The United Nations Declaration on the Rights of Indigenous Peoples is the framework for reconciliation at all levels and across all sectors of Canadian society.”
I also believe that this bill will only be effective when there is a clear plan around its implementation. To paraphrase Grand Chief Willie Littlechild—one of the architects of the declaration and the TRC report—there must be a clear vision and a clear path and plan for how it will be achieved.
What will Bill C-262 do? It is important to note that Bill C-262 is not creating any new rights for indigenous peoples. The rights of indigenous peoples as outlined in UNDRIP already exist in Canadian law; they are our inherent rights and are already recognized and affirmed in section 35 of the Constitution.
What Bill C-262 will do is create a positive obligation to ensure that existing and new legislation is consistent with our indigenous rights and clarify the circumstances in which those rights must be honoured in government decision-making. In other words, the bill will require the federal government, and indeed the provinces, to meet the promise of section 35 of our Constitution.
The ability of indigenous groups to oppose legislation or projects that adversely affect their rights operates on a spectrum. Indigenous peoples and the Inuit whom I represent specifically can and must have the ability to exercise self-governance and to make decisions affecting their lands.
This has already been recognized by the Supreme Court of Canada. In the Tsilhqot'in decision the court granted aboriginal title to more than 1,700 square kilometres of territory. However, the court also stated that the indigenous groups' interests must be reconciled with the greater public interest. Bill C-262 will not necessarily change this principle, but it strengthens it.
Free, prior, and informed consent, as contained in articles 19 and 32 of UNDRIP, is about self-governance. It is not in our view, as some would argue, about whether indigenous peoples have a veto. Members should ask themselves why certain people, in speaking about FPIC, use such pejorative words to describe indigenous decision-making and self-governance. Rather, these articles reaffirm the requirement for Canada to adhere to its already-existing obligations to consult, cooperate with, and accommodate indigenous peoples, and to do so with a view to obtaining our consent to activities that affect our lands and resources or to legislation that affects us.
In addition to clarifying when the requirement to seek consent applies, UNDRIP clarifies the nature of that consent: that it is to be obtained without coercion, that it be given prior to project decisions being made, and that it be based on the best available information.
What constitutes free, prior, and informed consent may vary depending on the circumstances and will be the subject of ongoing nation-to-nation negotiations and dialogue. Recent history demonstrates how the failure to implement and update laws to conform with UNDRIP can have quite negative impacts. The Muskrat Falls project, located in our territory, provides a prime example.
The passing of Bill C-262 cannot result in government simply continuing to follow existing policies and procedures with respect to the recognition of rights.
I just need one more minute to finish.
The federal government has recognized that its comprehensive claims policy does not adequately address the needs and realities of all indigenous groups. While I am optimistic about the newly announced recognition and implementation of rights framework, we will be watching closely to see how it will be put into action.
One concrete and meaningful step has been our engagement with the federal government on the acceptance of our claim for negotiation. As a further demonstration of the government's commitment to the principles of UNDRIP, we anticipate that this work to accept and negotiate our land claim will continue in a manner that facilitates the unique needs and positions of our people.
Thank you very much for your question, Mr. Amos. If I may, I will answer in French.
As I mentioned in my remarks, the April 2016 decision of the nine Supreme Court justices was unanimous. Basically, this decision stated that all off-reserve indigenous people were now considered Indians under the 1867 definition.
Following that decision, we met with the government two or three times. If I remember correctly, we had a meeting here, in Ottawa, in the March following the ruling in the Daniels case. We invited several people to this meeting. The vast majority of them were members of the Congress of Aboriginal Peoples. We invited a range of people from different parts of Canada. I think there were also some lawyers.
The purpose of the meeting was to study the scope of the decision. As I said, we submitted a report a year and a few months ago to Indigenous and Northern Affairs Canada, but nothing has changed since then. I would have thought that we would have had more meetings with the government. I understand that this is important news for the government, and it is very important for us too. I don't want to speak for the department, but I think everyone was caught a little off guard by this decision.
We are doing our job right now. As you can see, one of our tasks is to meet with you. So we can tell you what we think of this decision. We would also like to start a dialogue with the department and with the Government of Canada.
Was that long-winded enough, madame?
Yes. I think it would be fair to say that if Bill passed tomorrow, the government would have an obligation.... Well, it has an obligation anyway, but they haven't figured out how to meet that obligation, given the Daniels decision.
Mr. Russell, I was going to go to you next.
I know you talked about its being very inappropriate to use the word “veto” in relation to free, prior, and informed consent. I respect your saying that, although I want to point out that a number of indigenous communities themselves use that word, so I don't think it's a word that is used that consistently. Indeed, one NDP member said, for example, that free, prior, and informed consent means that with a project that might cross boundaries, every single community impacted by it would need to give consent, or the project would not go forward. We have, then, a member of Parliament for the NDP on television stating that very specific perspective on what this bill means.
I think we need to flesh this out. If we don't have a common understanding, we're going to be in a very difficult position. Although you said it's a distraction, I don't think, when you have so many people who perceive vetos in every single community requiring support of a project, that it's a distraction; and I think it's an important point of discussion.
Thank you very much. I'm honoured to have been invited to appear in front of you.
I'm here today to speak in support of Bill . I have a few minutes of prepared remarks, but I'm sure it will be less than 10.
I want to begin with two observations from most of a career spent as a lawyer and politician and also as a student of indigenous history and policy.
The first is this. Ever since the decision of the Supreme Court of Canada in the 1973 Calder case, courts have led the development of indigenous rights recognition policy. Governments have been in response mode, and the responses have often been reluctant and incomplete.
Nearly half a century on from Calder, the recognition and implementation of UNDRIP, as I'll call it, presents a unique opportunity for governments to take back the mantle of policy leadership—to be proactive rather than reactive. As a Canadian, I'm proud of that opportunity. As a British Columbian, I should also say that there is a potentially important and rare convergence, because both Canada's government and B.C.'s are committed to embrace and implement UNDRIP.
The second general comment I want to make is a broad historical summary, which is probably dangerous because of its breadth, but let me suggest that our thinking about indigenous issues has changed over time. Mine certainly has.
A century and a half ago, the stated goal was assimilation. This objective gradually—and thankfully—evolved into a different approach. Recognizing that indigenous peoples had pre-existing rights, these rights were half-recognized or sometimes converted into the form of claims, and the goal became how to design processes that would settle these claims, as if by settling them the claims could be made to go away, certainty could be purchased, and title could be settled.
Now, I suggest, we may finally be ready for a new, much better paradigm. The starting point is that famous last sentence of Chief Justice Lamer in his judgment in the Delgamuukw case where he said, “Let us face it, we are all here to stay.”
This sentence invites us to think less in terms of claims and claimants and more in terms of relationships—enduring relationships. We can begin to imagine a dialogue that's not about closure but about openings, a dialogue based on an equality of policies, where we're not aiming to settle title but rather to give meaningful effect to the indigenous right of self-determination. UNDRIP is a powerful tool for this purpose.
If asked, I would be the first to admit that Bill is an unusual bill. As someone who has drafted, debated, and enforced legislation, I'm a bit of a traditionalist. If government intends to require something by law, I usually want to know precisely what is being required. This is so I can predict the impact and implications and also the cost of what is intended. As a lawyer, I also value precision because it allows me to advise my clients about their rights and obligations. This bill does not satisfy those typical requirements, but it's not a typical bill. It's closer to constitutional than conventional law. It's perfect for its purpose.
Most importantly, perhaps, this bill leaves the details and the mechanics of how Canada's laws and practices will be made consistent with the objectives of UNDRIP to be worked out with indigenous peoples. The language in clauses 4 and 5, that phrase “consultation and cooperation”, is very important. Those words capture the important reality that it is not for the Government of Canada to decide unilaterally how the principles and obligations of UNDRIP will be achieved. This bill requires government to engage with indigenous peoples to make this happen. That legitimizes and empowers the indigenous voice and authority on these fundamental issues.
There are three reasons why this high-level commitment to consult and co-operate is important.
First, it allows for nuanced, local, site-specific solutions to meet the wide variety of contexts and circumstances in which recognition of UNDRIP will arise. It's simply not possible, nor is it desirable, to anticipate all of those situations in one piece of legislation. This bill gives marching orders to those who will have to do the hard work on the ground of making this real.
Second, it increases the likelihood that the solutions that will be found will have shared buy-in, which, I respectfully suggest, is an increasingly elusive goal in public policy decision-making these days.
Third, consultation and co-operation are themselves foundational principles for the needed new relationships. I envision relationships not characterized by line-item vetoes where consent is conditional on agreement to every single clause and condition of every decision, but rather through negotiated give-and-take in a manner that is familiar to anyone who has participated in complex government-to-government negotiations and problem-solving.
I know there are concerns that the full recognition of UNDRIP, no matter how well intentioned, will simply add more roadblocks to the development of lands and resources. That is certainly a concern of some here in British Columbia.
The concern, as I'm sure you all know, is with UNDRIP's statement that resource development requires the “free, prior, and informed consent” of indigenous landowners. I don't dismiss this concern, but I strongly believe that adoption of UNDRIP standards represents a tremendous opportunity to change how land and resource decision-making is done, in a way that will benefit everyone. Properly implemented, UNDRIP offers an opportunity to replace conflict on the land with co-operation and to make real progress towards reconciliation.
The starting point for a consideration of the requirement of free, prior, and informed consent is the acknowledgement that governments do not seek permission from every single one of us before decisions are made. Rather, we elect governments to make such decisions on our behalf. The result of this process of self-determination—that is, the right to choose by whom and how we are governed—is that those who govern, broadly speaking, have our consent to do so.
I suggest that we ought to see the idea of free, prior, and informed consent in the same terms. Full inclusion in decision-making processes, acknowledgement of the legitimacy of diverse perspectives, and shared participation, responsibility, and accountability for outcomes become the means by which the necessary consent is obtained.
What's needed, then, I suggest, are new decision-making processes. Today, first nations are consulted about proposals, but non-indigenous governments usually have the last word. There's a need for new models that include first nations as shared decision-makers, so that they are not simply affected by the decision, but are partners in it.
Bill should cause the Government of Canada to initiate processes of consultation and co-operation that will lead to the design and implementation of these new models, at least within the fields of federal legislative authority. Full inclusion not only respects indigenous ownership of their lands and resources; it also respects the right of indigenous peoples to decide for themselves how their lands are to be used and how they are to be governed. Full inclusion is the pathway to real consent. It meets both the letter and the spirit of UNDRIP, and it will move us away from conflict to co-operation. Full inclusion is a necessary step on the road to reconciliation.
There's no certainty here. Mainly, there is an opportunity, but it's the right opportunity. Bill , in my respectful opinion—
Good afternoon, Madam Chair and honourable committee members.
I am Grand Chief Abel Bosum. On behalf of the Cree Nation of Eeyou Istchee, I am pleased to appear before you today with Deputy Grand Chief Mandy Gull; Paul John Murdoch, corporate secretary; Tina Petawabano; Brian Craik; Paul Joffe; Bill Namagoose; Paul Workman; Melissa Saganash; and, our youth, Sehoneh Masty.
The Cree Nation of Eeyou Istchee includes more than 18,000 Eeyouch, or Cree, occupying our traditional territory of Eeyou Istchee. This territory covers around 400,000 square kilometres and is located mainly to the east and south of James Bay and Hudson Bay.
Indigenous peoples in all regions of the world share common challenges and injustices. These include the debilitating effects of colonization, land and resource dispossession, racial discrimination, marginalization, and the devastating effects of severe impoverishment.
We are proud that Romeo Saganash, a member of our Cree Nation, is the sponsor of Bill . The bill will significantly advance the human rights of indigenous people in Canada and, if adopted, Bill C-262 will also set an important precedent for indigenous peoples in other countries worldwide.
The central focus of the bill is the United Nations Declaration on the Rights of Indigenous Peoples. As underlined in call to action number 43, the Truth and Reconciliation Commission calls on the federal government and all levels of government to implement the UN declaration “as the framework for reconciliation”.
In regard to the UN declaration, collaborative processes will also be established with the federal government that will enhance harmonious and co-operative relations. In addition, the bill repudiates colonialism as well as fictitious and racist doctrines of superiority, such as as “discovery” and terra nullius. Therefore, it is absolutely essential that Bill is adopted by both Houses of Parliament. We urge every political party to support this human rights legislation.
Since the early 1980s, our leaders and representatives have attended and participated in the UN standard-setting processes that led to the adoption of the UN declaration in 2007. We always knew that we were both international and domestic actors. Our international personality has been repeatedly confirmed not only by the 20 plus years of negotiating the UN declaration, but also by the increasing number of indigenous issues and processes taking place at the United Nations with direct indigenous participation.
Our Cree Nation knows what it's like to be treated as if we have no inherent rights or no pre-existing rights. In the early 1970s, the construction of the James Bay hydroelectric project was announced by the premier of Quebec with no regard to our rights. At that time, it was the largest project in Canada's history. We had to go to the door of the Supreme Court of Canada before the government was willing to negotiate an agreement.
When the Cree entered into the James Bay and Northern Quebec Agreement in 1975, we saw it as a partnership in governance, environment, and development issues with Canada and Quebec. However, in the years after the signature of this agreement, relations between the Cree, Canada, and Quebec severely deteriorated. Both governments failed repeatedly to implement the agreement. For over 20 years, we were continually entangled in court cases with both governments, at great expense to all parties.
In February 2002 the Cree entered into a nation-to-nation agreement with the Quebec government. This 50-year agreement is referred to as the Paix des Braves. As affirmed in its preamble, this agreement “is based on a development model which relies on the principles of sustainable development, partnership and respect for the traditional way of life of the Crees”. To incorporate sustainable development in our treaty, the James Bay and Northern Quebec Agreement, the agreement was also amended.
Moreover, in February 2008 we entered into the Agreement Concerning a New Relationship Between the Government of Canada and the Cree of Eeyou Istchee. In particular, this agreement established the process of negotiating a Cree Nation government. We are pleased that the Cree Nation of Eeyou Istchee Governance Agreement Act, Bill , was assented to on March 29, 2018.
La Paix des Braves and the Canada-Cree agreement both embrace the basic principles of co-operation, partnership, and mutual respect that are the highlights in the UN declaration. Both agreements reflect a consensual relationship. It has been about 47 years since Quebec's decision to proceed with the James Bay hydroelectric project in Eeyou Istchee without our consent. We have all learned that such unilateral action leads to bitter conflicts that are not in the interest of any party concerned. However, our consensual relations are not limited to governments. Consistent with our right to self-determination, we have entered into more than 90 agreements with Canada and business enterprises. I am well placed to emphasize this point relating to consent, or better yet adding value, since I have often been the chief negotiator in achieving such business and government agreements.
There may also be occasions when we turn down a proposed project. About five or six years ago, when a third party proposed a uranium project in Eeyou Istchee, the Cree Nation and the Government of Quebec rejected the proposal after careful examination and reflection. Our decision received support from the Quebec government and over 200 municipalities. We have the right to safeguard our environment, economy, and way of life from unacceptable risks. We have a responsibility to protect the health, security, and well-being of present and future generations.
In conclusion, I would like to emphasize that our treaties and other agreements must remain living and dynamic agreements for our present and future generations. When there are new and unforeseen circumstances, our treaties and agreements must be appropriately amended. In regard to the James Bay and Northern Quebec Agreement, there have been at least 24 complementary agreements. La Paix des Braves, similarly, was amended in December 2003.
We believe that the two collaborative processes in Bill —to ensure that the laws of Canada are consistent with the UN declaration and to develop and implement a national action plan—can be a useful complement to our treaties and agreements.
Meegwetch. Thank you.
[Witness speaks in Cree]
I want to say good afternoon to members of the esteemed standing committee. Thank you for inviting the Indian Resource Council to testify on Bill . I have made this trip on behalf of the Indian Resource Council, and not on behalf of Thunderchild.
My name is Delbert Wapass. I'm the Chief of Thunderchild First Nation from Saskatchewan. We are located in the heart of oil and gas country, Lloydminster, on the Alberta-Saskatchewan border.
The Indian Resource Council is a national advocacy organization of chiefs. Our mandate is to represent resource-based first nations by ensuring that their oil and gas resources are managed in their best interests. We work with Canada through Indian Oil and Gas Canada, IOGC, and with industry to ensure that our people participate fully in the energy sector and that we derive maximum benefit from these resources.
On behalf of IRC, we are pleased to share our perspectives as you study Bill .
First, we note and recognize that we are making our submission on unceded Anishinaabe lands.
We acknowledge the Honourable Romeo Saganash, member of Parliament, who is championing Bill , which requires the laws of Canada to be in harmony with the United Nations Declaration on the Rights of Indigenous Peoples. The IRC is pleased to support Mr. Saganash's private member's bill and his recommendation for the adoption and implementation of UNDRIP into Canadian law.
We also acknowledge the work of the Truth and Reconciliation Commission of Canada, the recommendations of which, among those of many others, have placed UNDRIP in the spotlight of our discussion today.
We also appreciate the best efforts of the Government of Canada, especially those of the , to make UNDRIP a priority in the context of Canada's reconciliation with the indigenous peoples. The Prime Minister, on many occasions, has reiterated this commitment, and especially with his concise statement that “the Government of Canada is committed to a renewed relationship with Indigenous Peoples, based on the recognition of rights, respect, co-operation, and partnership.” We take these words to heart and believe that Bill embodies and gives life to these words.
When the Minister of Indigenous and Northern Affairs, the delivered a speech at the United Nations Permanent Forum on Indigenous Issues at the United Nations Headquarters in New York on April 25, 2017, she too made that statement.
In direct response to the declaration, the has mandated the to chair a working group to review all federal laws and policies related to indigenous peoples to reverse the colonial paternalistic approaches. This is about breathing life into section 35 of Canada's Constitution, which formally entrenches the rights of indigenous peoples in Canadian law, and yet which, for far too long, has not been lived up to.
IRC is here today to support these proposals and sentiments and to formally express our support for Bill and the responses to UNDRIP, including an internal legal review, and the adoption and implementation of Bill with its main goal of developing and implementing a national action plan.
Bill is a new approach to first nations issues. When enacted into law it will advance the process of Canada's framework for reconciliation. IRC recognizes that this federal legislation is needed to reject the colonial structures that continue to oppress the indigenous peoples of this land and to replace these structures with new frameworks that are based on reconciliation.
Further, IRC wants to state clearly that any new legislation must be consistent with Canada's duties and roles, which include fiduciary duties and the historical trust obligations of the crown with respect to first nations lands and resources.
The metaphor of braiding international, domestic, and indigenous laws is relevant to many indigenous traditions in Canada, as stated by some indigenous academics and professionals. The braiding of sweetgrass indicates strength and the drawing together of power and healing. A braid is a single object consisting of many fibres and separate strands. It does not gain its strength from any single fibre that runs its entire length, but from the many fibres woven together. Imagining a process of braiding together strands of constitutional, international, and indigenous law allows one to see the possibilities of reconciliation from different angles and perspectives, and thereby to begin to reimagine what a nation-to-nation relationship, justly encompassing these different legal traditions, might mean.
This is a fitting metaphor for what is contemplated by Bill . It has been 10 years since UNDRIP was adopted by the United Nations on September 13, 2007. It is the right time for Canada to end the debate. Pass and enact Bill C-262.
As highlighted in the United Nations Permanent Forum on Indigenous Issues document, the UNDRIP confirms the right of indigenous peoples to self-determination and recognizes subsistence rights to lands, territories, and resources. The IRC submits that first nation oil and gas producers and other first nations with the potential to produce oil and gas want to achieve self-determination by asserting their jurisdiction, and want their subsistence rights to lands, territories, and resources recognized in Canadian law.
Bill purports to provide such assurance. Our organization has been an active participant in developing oil and gas legislation that impacts first nations across Canada. It is our intention to develop our own institutional structures that will shift control of oil and gas from Canada and IOGC. This would be a true exercise of sovereignty and self-determination, as contemplated by UNDRIP and Bill C-262.
In 2005, IRC appeared as a witness before the Standing Committee on Aboriginal and Northern Development for its study of Bill , FNOGMMA. In 2009, we appeared again at the standing committee for its study of Bill , An Act to Amend the Indian Oil and Gas Act. In 2009, IRC appeared as a witness before the Senate Standing Committee on Aboriginal Peoples for its study on that same bill, Bill . Presently, in 2018, IRC continues to do joint work with INAC and IOGC.
If this committee decides to proceed with Bill , IRC is willing to share our experience and offer to work jointly with INAC to develop a national action plan to achieve the objectives of UNDRIP, and ensure that the fiduciary and historical trust obligations for first nation lands and resources are protected. Self-determination and indigenous sovereignty can be implemented in practice by UNDRIP through the implementation of free, prior, and informed consent. Critics of free, prior, and informed consent are concerned about the definition of this concept. Some have equated it to a veto. We at IRC have no such apprehensions. We know that we have rights and title to our land. Canadians courts, including the Supreme Court, did not create these rights; they merely confirmed the existence of these rights. UNDRIP did the same thing by confirming our rights, which existed long before we were colonized.
Free, prior, and informed consent is a tool that can be used to ensure respectful and meaningful consultation with indigenous people whenever and wherever their rights are being impacted. It is another tool for reconciliation.
[Witness speaks in Cree]
Welcome to all.
Welcome back, Mr. Joffe. It wasn't that long ago that you were sitting just one over.
You all touched on free, prior, and informed consent, and two of the groups in front of me have had long negotiations. Some go on for months and years.
So let's face it; let's talk about the oil and gas, if we can, Mr. Wapass, because you come from my province. You've had a tenacious relationship, if I can say that, with Husky Energy, just next door to you, if you don't mind my saying that. I think I'm correct on that.
So here we have Kinder Morgan. You talk about moving gas and oil, and we talk about this every day in the House of Commons. How will this bill improve getting oil and gas to where it should, through B.C., when right now we have a number of agencies in British Columbia supporting it, we have a handful not supporting it, and we're deadlocked?
Thank you, Madam Chair.
Thank you to all our guests this afternoon.
[Member speaks in Cree]
Thank you to Mr. Plant as well.
I'll come to a very specific question about the costs you mentioned.
Let me start with you, Grand Chief Bosum. I know that the James Bay and Northern Quebec Agreement is the first modern treaty in this country and that it has contributed a lot to the development and recognition of indigenous peoples in this country with the agreements that followed along the way.
Do you consider the James Bay and Northern Quebec Agreement an instrument of reconciliation? Do you believe that the concept of free, prior and informed consent is embodied in the James Bay and Northern Quebec Agreement? I'm talking about all four elements: “free”, “prior”, “informed”, and “consent”. Do you believe that they are already embodied in the James Bay and Northern Quebec Agreement?
In listening to many of the testimonies here, I see the trend that recognition of indigenous peoples in this country is good for the environment and good for the economy. I wonder if you could elaborate on how beneficial it was for the Cree in northern Quebec, but also for other non-Crees in the region and beyond. I'd like you to elaborate on all of those things. I know that's a lot in one question, but as a former negotiator I'm sure you can handle that.
[Witness speaks in Cree
Well, first of all, I think the agreement does have the framework for addressing many issues. As I mentioned in my statement, we saw the James Bay agreement as a framework for partnership in governance, environmental issues, and development issues. Now, it has taken some time for the Government of Quebec to understand what we meant by that, and of course we butted heads in the early years.
However, since 2002 when we signed the Paix des Braves, we took a different approach to how we were going to deal with development. Since then, we have been able to implement our treaty in all sectors: education, health, policing, justice, and so forth. As well, we have been able to negotiate over 40 agreements with the industries and close to 50 agreements with the governments, so there is a way.
I want to turn to Paul John again and just have him maybe explain a little about the environmental assessment process, which could certainly be a way to deal with some of these megaprojects we're talking about across the land.
[Witness speaks in Cree]
I'm so glad you brought up the other elements of free, prior, and informed consent, because everybody gets stuck on consent, yet when we present a project in the community or Brian and I are involved in some assessment, it's the “free, prior, and informed” part that is really important.
When I listen to my grand chief speaking and I look at the agreements he negotiated, it's not for nothing that the agreements begin with the word “relationship”. That's what the James Bay and Northern Québec Agreement is. When you read UNDRIP, you can't read article 19 in isolation; you have to read it with 18. It's a relationship. When people harp on the issue of consent and on free, prior, and informed consent, and there's fear that comes out of it, you automatically see that the person is looking at it like a transaction. If you look at it like a transaction, you'll lose, and that's always been the source of butting our heads on the James Bay and Northern Québec Agreement.
However, once we get it back into a relationship and we get to own the decision that comes out of the process, instead of focusing on the “no” that would come from the community you instead get to see the incredible value of a “yes” that comes from the community. There's not a single project in Cree territory that has gone through an environmental impact assessment that wasn't made better by the land users and the advisers and the decision-makers from the community. We've approved way more projects than we've held back. When we approve all of those projects, we improve them as well. This is where it's a bit sad when we don't recognize the relationship part.
There are guiding principles. Every once in a while we get stuck on a project, and Brian is the voice of wisdom who usually sends us back to, “Hey, let's read the treaty. What does the treaty say about the principles we're supposed to use when we make these decisions together?” We're two representatives named by the Cree Nation Government, and we have two representatives named by Quebec, and this is our decision we send to the minister.
After talking about first nations' rights, protecting the land, protecting the environment, and protecting wildlife, people are surprised that part of our mandate—per subsection 22.2.4, article f) on the involvement of the Cree people in the application of this regime—is to protect “the rights and interests of non-Native people, whatever they may be”. You have Cree representatives defending the rights of non-native people in our territory, “The right to develop by persons acting lawfully in the Territory”. You have Cree representatives defending the right of people to act lawfully and then minimizing negative impacts and trying to augment social impacts. As the grand chief said, when you focus on the relationship and get to be a part of the decision, we'll defend the decision. We'll use our institutions to defend the decision. However, when we focus on consent, you're reducing us to a simple transaction, we're put in isolation, and you're not going to get the full value of our participation.