Good morning, everyone.
I want to welcome everyone to this hearing of the Indigenous and Northern Affairs standing committee of Canada. We are here today on the unceded territory of the Algonquin people in a process that's not just superficial but recognizes that Canada has finally recognized that it's important to understand the truth and to begin a process of reconciliation with the indigenous people of Canada.
Pursuant to Standing Order 108(2), the committee is looking into issues related to specific claims and comprehensive land claims agreements. We will begin the procedure.
Today we have with us the Lesser Slave Lake Indian Regional Council, with Morgan Chapman. Committee members will remember that we met her in B.C.
We're glad to have you back; you have many faces.
We also welcome the representatives from Nunavut Tunngavik Inc. They will also be speaking for the Land Claims Agreement Coalition.
Both groups have 10 minutes to present, and then there will be a question period.
MPs, I'd ask you to direct your questions to whichever group, or to both, if that's your choice.
Witnesses, have you decided who's going to start?
All right, Morgan, you win. You have 10 minutes. Begin your presentation, please.
Thank you, Madam Chair.
Once again, my name is Morgan Chapman. I'm here for the second time, this time representing one of our client groups, the Lesser Slave Lake Indian Regional Council treaty and aboriginal rights research program.
Today I want to speak to you about reconciliation and the fact that the process, as it stands today, cannot take place under the framework of the current specific claims process. I would also like to acknowledge that we are on the unceded Algonquin territory.
To start, first nations receiving specific claims research services from the Lesser Slave Lake Indian Regional Council treaty and aboriginal rights research program are all signatories to Treaty No. 8. Despite the recognition and affirmation of this treaty in the Canadian Constitution, central provisions, such as the protection of the traditional aboriginal mode of life, are ineligible for submission as a specific claim. The Specific Claims Tribunal Act, in paragraph 15(1)(g), states, “A First Nation may not file with the Tribunal a claim that...is based on treaty rights related to activities of an ongoing and variable nature, such as harvesting rights.”
We respectfully ask that the Standing Committee on Indigenous and Northern Affairs help resolve this serious inconsistency in order to achieve Canada's reconciliation goals.
As a point of departure, it's important to note the critical distinction between specific and comprehensive claims. Canada defines a “specific claim” as addressing
||past grievances of First Nations related to Canada's obligations under historic treaties or the way it managed First Nations' funds or other assets. To honour its obligations, Canada negotiates settlements with the First Nation and (where applicable) provincial and/or territorial governments.
In other words, specific claims are those that identify outstanding breaches of Canada's specific lawful obligations to first nations. By contrast, comprehensive claims, also known as modern-day treaties, address general claims to aboriginal title not previously settled by treaty.
In order to understand the relevance of the issues at hand, one must understand the context under which Treaty No. 8 was agreed with by our member nations.
The crown intended to acquire land in British-occupied territories in North America, but the Royal Proclamation of 1763, which recognized aboriginal title, obligated it to negotiate treaties with indigenous peoples in order to open the land for settlement. Consequently, the government negotiated a series of treaties with various first nations as settlement advanced westward.
Treaty No. 8, as its sequence among the numbered treaties indicates, came near the end of this process, because the northern territory it encompassed was initially not considered as valuable as those covered by the preceding prairie treaties. However, the government's understanding of the territories' value changed abruptly in 1896 with geological surveys and the discovery of gold in the Yukon Territory, resulting in a growing recognition of the need for a treaty.
In the summer of 1898, while Ottawa developed plans to hold treaty negotiations the following spring, the first nations of the region became increasingly angry over the influx of miners. As the Ottawa Citizen reported:
||There are 500 Indians camped at Fort St. John who refuse to let police and miners go further north until a treaty has been signed with them. They claim that some of their horses have been taken by the miners and are also afraid that the advent of so many men into their country will drive away the fur; hence their desire to stop the travel north.
As Indian Commissioner Forget noted at the time: “no time should be lost in notifying the Indians of the intention of the Government to treat with them next Spring”. Consequently, a treaty commission was sent to negotiate Treaty No. 8, which was signed on June 21, 1899.
The commissioners, in their report following negotiations on Treaty No. 8, recounted the importance of assuring the nations that their traditional modes of life would be respected:
||Our chief difficulty was the apprehension that the hunting and fishing privileges were to be curtailed. The provision in the treaty under which ammunition and twine is to be furnished went far in the direction of quieting the fears of the Indians, for they admitted that it would be unreasonable to furnish the means of hunting and fishing if laws were to be enacted which would make hunting and fishing so restricted as to render it impossible to make a livelihood by such pursuits. But over and above the provision, we had to solemnly assure them that only such laws as to hunting and fishing as were in the interest of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made, and that they would be as free to hunt and fish after the treaty as they would be if they [had] never entered into it ... the Indians were generally averse to being placed on reserves. It would have been impossible to have made a treaty if we had not assured them that there was no intention of confining them to reserves. We had to very clearly explain to them that the provisions for reserves and allotments of land were made for their protection, and to secure to them in perpetuity a fair portion of the land ceded, in the event of settlement advancing.
Further assurances, such as those made by Father Lacombe, special adviser to the commission in 1899, were used to entice first nations into signing the treaty: “Your forest and river life will not be changed by the Treaty, and you will have your annuities, as well, year by year, as long as the sun shines and the earth remains. Therefore I finish my speaking by saying, Accept!”
These promises were also recounted in an affidavit signed by a witness to the negotiations, known locally as Peace River Jim, describing the promises and assurances that were given:
|| It was only after the Royal Commission had recognized that the demands of the Indians were legitimate, and had solemnly promised that such demands would be granted by the Crown, also, after the Hudson's Bay Company Officials and Free Traders, and the Missionaries, with their Bishops, who had the full confidence of the Indians, had given their word that they could rely fully on the promises made in the name of QUEEN VICTORIA, that the Indians accepted and signed the Treaty, which was to last as long as the grass grew, the river ran, and the sun shone—to an Indian this means FOREVER.
Despite the assurances of the crown's representatives that their traditional economy and mode of life would be protected, almost immediately after the signing of the treaty laws began to be passed restricting the signatory nations' rights to hunt, fish, and trap. Thus, the main intentions driving the first nations' decision to sign Treaty No. 8, and consequently the main solemn promises of the crown, were violated.
First nation signatories recognized and understood the rights provided for within Treaty No. 8. In April 1900, Chief Kinosayoo and his councillors, who represented five of our seven member nations, formally asked Canada to uphold its provisions. Specifically, they requested the surveying of reserves, provision of agricultural implements and ammunition and twine, and other promises, such as education of their membership, and 117 years later, in the fall of 2017, Canada finalized negotiated specific claim settlements with a number of Treaty No. 8 first nations regarding provision of those agricultural benefits.
It should be noted that while this one provision has been settled, the specific claims process has not even begun to address the real issue at the heart of Treaty No. 8, which is the signatories' right to their traditional mode of life. This is because, again, under the Specific Claims Tribunal Act, these rights have been deemed ineligible for submission as a specific claim.
This was not always the case. In 1982's “Outstanding Business: A Native Claims Policy”, under “Specific Claims”, such breaches were eligible for research, submission, negotiation, and resolution. Despite “Outstanding Business” providing more opportunities for first nations to address outstanding legal obligations against the crown, the process was deeply flawed, and a 2006 Senate report entitled “Negotiation or Confrontation: It's Canada's Choice” called once again for an independent tribunal process. This eventually led to the Specific Claims Tribunal Act in 2008.
The act was a step forward in terms of providing an independent adjudication process through the tribunal, but a step backward in eliminating the ability of first nations to deal with the historical breach by the crown of its most important lawful obligation under their treaty.
As a direct result, the federal government's recent stated objectives regarding reconciliation through the specific claims process cannot be fully achieved. The courts have recognized that the treaties represent a solemn and sacred promise between Canada and the signatory nations, and until our nations have a mechanism to address and resolve Canada's outstanding legal obligations, reconciliation, in the complete sense of the word, is simply unattainable.
We respectfully request that the Standing Committee on Indigenous and Northern Affairs evaluate the act and make recommendations to amend it to address the elimination of paragraph 15(1)(g). To achieve reconciliation and preserve the honour of the crown, treaty first nations must be able to seek redress for outstanding legal obligations of the crown by addressing all solemn and sacred promises made under the treaty, not just some of them.
We obviously welcome questions today. I have provided our contact information in the brief, which we are hoping to submit by end of day tomorrow. It will also include our director's contact information, in case there is anything we can't address today.
[Witness speaks in Inuktitut
My name is Aluki Kotierk. I'm the president of Nunavut Tunngavik Inc. I want to thank you for the invitation to come and make a presentation to you today, and I want to offer some praise. When I walked into the Parliament building this morning, the security officer who was checking me in and making sure my bags were safe said “nakurmiik” as I left, and I thought, wow, that's a great indication that it's becoming a common practice that Inuit come to the Parliament building more frequently.
I'm here as the president of Nunavut Tunngavik Inc., but I'm also here as the co-chair of the Land Claims Agreements Coalition.
In 2003, the modern treaty signatories held a national conference and set up the coalition. We found that many of us had implementation problems with our agreements. We formed the coalition to bring about changes in government policies and practices so that our agreements could be fully implemented.
Of course, each treaty has its own character, and each indigenous party speaks for its own treaty. The coalition does not change that. We are not a formal legal body. We are modern treaty signatories who are working together. We include first nations, Métis, and Inuit modern treaty signatories. Our Inuit members are also members of the Inuit Tapiriit Kanatami, and our first nations members are also members of the Assembly of First Nations.
We have 29 modern treaties extending from Nunatsiavut through Nunavik and James Bay, across Nunavut and the Northwest Territories, the Yukon, and down into British Columbia. They cover almost half the land mass of Canada. Some of our members have signed more than one modern treaty. We have 26 members in our coalition. We have two chairs chosen by the members. One represents the first nations, and this has been the Nisga'a, and the other represents Inuit, and that's NTI.
We formed the coalition to pursue changes in the government's approach to implementation. These are both policy changes and organizational changes. Before I get into that, I want to speak a little more specifically about our agreement, the Nunavut agreement, and the challenges we faced in implementation.
After almost two decades of research and negotiation, Inuit signed the Nunavut agreement in 1993, 24 years ago. Ours is the largest land claims agreement in Canada. We have 31,000 Nunavut Inuit. Our agreement redefined our relationship with the Government of Canada. It represented our quest for self-determination and for decolonization.
NTI's mission is Inuit economic, social, and cultural well-being through the implementation of the Nunavut agreement. I would like to speak for a moment on the subject of self-government. I understand that is part of your mandate.
In 1993, when we signed our agreement, federal policy was not to negotiate self-government through a land claims agreement. In fact, self-government, as usually understood in a first nations context, was not our goal. Our goal was to create a new territory with its own public government.
After a long, hard battle, we achieved that, and the federal government agreed to put article 4 in our Nunavut agreement. Nunavut was established six years later. This was not in the federal land claims mandate, and I must give credit to Minister Siddon at that time for being prepared not only to think outside the box but to act outside the box.
Our agreement is made up of 42 articles, and it redefined our relationship with the crown. We don't have time to go through all the articles, but I want to highlight some of the challenges and shortfalls in Canada's performance we've had in the implementation of our agreement.
Our agreement provided for arbitration to resolve disputes as an alternative to going to court, but the two parties, government and NTI, had to agree before arbitration went forward. Anyone who fears a contrary arbitration decision will find it in their own interest to refuse arbitration, if they have that option. Over the years, every time NTI tried to refer a matter to arbitration, the federal government would refuse.
In 2006, frustrated by the federal government's inaction on important points in parts of our agreement, NTI went to court. We started an action for breach of contract, failure to meet fiduciary obligations, and failure to act in a way consistent with the honour of the crown.
In May 2015, we signed an out-of-court settlement agreement. As part of that settlement, the arbitration provisions of our agreement have been changed. Now either we or the crown can refer a matter to arbitration. We have not used the new process, and hopefully we will not have to, but we now have it if we need it.
It would be appropriate for all modern treaty signatories to have effective access to binding arbitration when needed. This is an aspect that this committee could examine further.
A key element of the Government of Canada's responsibilities relates to appropriate consultations with indigenous peoples. This was reconfirmed by the Supreme Court in the recent Clyde River case. I'm sure you're well aware of the details, but I want to highlight a number of things.
The Supreme Court recognized that it is the government's responsibility to ensure that consultation by an administrative tribunal such as the National Energy Board is adequate. In this case, the court decided that there was not adequate consultation with the Clyde River community. No meaningful avenues of participation were provided to the Inuit of Clyde River, for a number of reasons. These include that Inuit had not received participant funding to assist in their preparation and participation in the process. More often than not in Nunavut, we lack access to information and technical means to fully address development proposals. Some form of participant or intervenor funding is critical to our ability to participate meaningfully in such processes.
The Canadian Environmental Assessment Agency, the Canadian Nuclear Safety Commission, and the National Energy Board all have their own participant funding programs. In Nunavut, development proposals are reviewed by the Nunavut Impact Review Board under the Nunavut agreement. It is funded by the federal government and does not have a participant funding program. As a result, we cannot be confident of having the means to participate effectively in assessing important projects affecting the wildlife in our areas.
The federal Nunavut Planning and Project Assessment Act was adopted to implement the Nunavut agreement. Subsection 228(1) states that the Governor in Council may establish such a funding program for Nunavut. So far, this has not been done. NTI has requested that the federal government establish a participant funding program in Nunavut. We are waiting for a response to our proposal.
I want to touch on article 23 of our Nunavut agreement, which deals with Inuit employment in both the federal and the territorial public service. The objective is a representative workforce, which in Nunavut means 85% Inuit employment, yet today Inuit make up only 18% of the senior management level and 27% of the middle management level, with an overall 50% Inuit employment percentage across our public service.
It is now over 21 years since a full set of departmental Inuit employment plans and pre-employment training plans, with hard targets and timelines and all the necessary detail to meet those targets and timelines, were supposed to have been completed. Recently we commissioned a report by PricewaterhouseCoopers on the economic loss that Inuit face from the failure to implement article 23. The study reveals that, at this rate, $1.2 billion in employment income will be lost by Inuit over the next six years, and government costs will be $500 million more than necessary.
I have a copy of this report, which I will provide to the clerk for your reference.
In my view, this file really requires political will and the injection of direct and forceful ministerial intervention. In terms of achieving a representative workforce, not only would that have an economic impact on the lives of Inuit when we have a territory where seven out of 10 children go hungry every night, but it would have an impact on the way in which programs and policies are developed and programs and services are delivered. If we have more Inuit employees, the policies will reflect Inuit ways of understanding and being, and the programs and services will be delivered in Inuktitut—and the probability for that will be much higher.
I understand that I don't have much time, so I'm just going to give a brief listing of some of the other implementation challenges we have.
The federal government has yet to develop a procurement program, which is required under article 24. Also, Inuit impact and benefit agreement negotiations for the heritage rivers have been outstanding for many years. As well, we've been excluded from the aboriginal fisheries strategy, despite our entitlement to benefit from government programs, and Fisheries and Oceans has yet to harmonize the fishing regulations to correspond with the Nunavut agreement.
To go back to the Land Claims Agreements Coalition, I want to state that we have a four-ten declaration, which our members approved in 2006. I'll leave a copy of that for your clerk as well. The key points are that our modern treaties are with the crown, not with Indian Affairs; we need a federal commitment to meet the broad objectives of our agreements, which must not be interpreted narrowly; implementation must be handled by senior officials; and, an independent review body should review implementation.
We would like to see an independent agency. That has not been addressed by the government. We will be emphasizing this more in the future. The Auditor General has assessed implementation of four modern treaties over the last 12 years, and that work has been very much appreciated, but we need to do more of that.
In conclusion, I draw your attention to article 37 of the United Nations Declaration on the Rights of Indigenous Peoples, which speaks to the rights of indigenous peoples and the role of states.
In terms of the agreement, the Nunavut Agreement was signed in 1993, and on April 30, 1990, the agreement in principle was signed in the community I'm from. I was a 15-year-old girl watching Minister Tom Siddon and the president of NTI, Paul Quassa, signing that agreement in principle.
I can tell you that there was a lot of excitement and hope that it would mean that we would be able to live our lives on our own terms, and whether we made mistakes or not, that at least we would be making our own mistakes. We were going to do it in our own language and in ways that understood who we were. That was the vision of Nunavut. I think that's still the vision of Nunavut, but we have yet to achieve it.
By not implementing the Nunavut agreement and the 42 articles in our Nunavut agreement, we were falling short of the dream that so much time and so many lives had been dedicated to achieving, so out of frustration, Nunavut Tunngavik Incorporated took the Government of Canada to court because, specifically in terms of article 23, we have yet to receive sufficiently detailed Inuit employment plans that talk about how many positions there are in each department, which would provide a real, concrete plan of how you would get an Inuk to fill the position.
Also, then, it's not enough to have a plan. You need to have the resources to support and implement the plan, and those things have not been forthcoming. Since the 2015 settlement agreement, it was reaffirmed that we were still going to work towards that. We're now in 2017 and we still don't have Inuit employment plans that are sufficiently detailed to satisfy our needs and to give us assurances that Inuit will be employed.
If you don't mind, I'm going to ask Alastair to provide details about the legal aspects.
I'm not sure of exactly the legal aspects, but there's a sort of general approach that was taken towards the interpretation of the Nunavut Agreement early on. When the Auditor General reviewed DIAND's implementation of it in 2003, he observed that the department tended to look not at the objectives of the agreement, but at the obligations, and in a rather narrow sense.
People focused on, let's say, 14(1)(c)(iii), and interpreted that in relation to their existing government policies and what they were free to do as a result of those policies in carrying out 14(1)(c)(iii), for example. I'm making up the numbers. The problem is that the objectives that are laid out in various places, both in the front piece, in the preamble of the agreement, and then in some of the chapters where there are objectives, tended to get glossed over.
The objective of securing greater Inuit self-reliance, for example, kind of got.... If you're working in a department where you're doing contracting, you don't think about that. I think a lack of oversight was one of the reasons. I think a lack of the ability to go to arbitration, as was pointed out, is another reason. Inuvialuit have or had arbitration; I believe they may have the only modern treaty, before we got it in 2015, to have a provision that allows them to go to arbitration whether or not the government agrees.
From what I'm told, this made the government very careful about doing what they have to do, because they do not want to face arbitration. There was a lack of incentive. If something is put off, it can take a few years, and then it gets put off again, and a person changes and the policy changes, and there's a lack of oversight and direction within the government.
Presumably that has changed a bit with the establishment of the deputy ministers' oversight committee, but this is a long-term problem, and until there's a.... This is a complicated agreement, and there are 30 of them. I don't think there's much government-wide understanding of them.
Thank you, Madam Chairperson and honourable members. There is a briefing paper, but I regret that it's not available, as we did not have time to provide it in both official languages. You'll be receiving that in the fullness of time.
I'd like to zero in on some of the major points that have to do with the parliamentary objectives in relation to the tribunal. It is an aspect of reconciliation. One of its objects is to create conditions in which negotiations may occur. There is an express recognition of the value of mediation, and the tribunal is empowered to make rules with respect to mediation.
Just to back up a bit, what are specific claims and how did they come to be part of the national discussion? In 1974, the Calder decision in the Supreme Court of Canada split evenly on the question of whether aboriginal title had been extinguished in British Columbia. The appeal was disposed of on a technicality, but governments started to take claims seriously. Two policies were formed: one to address specific claims and another was to address comprehensive claims.
Specific claims relate to treaties, the failure to observe the provisions of treaties, reserve creation, and the federal fiduciary obligations in relation to reserves. Comprehensive claims address unceded indigenous interests in land and resources.
I view the jurisdiction of the Specific Claims Tribunal as a presiding over the death of a thousand cuts, because we're dealing not with the big, broad, nationwide questions around indigenous title and what treaties mean, but rather the particular actions of succeeding governments in relation to indigenous interests at a local level that, when found in breach, have done so much damage to the indigenous peoples of our nation.
Comprehensive claims, of course, have more to do with the colonial failure to uniformly apply the common law recognition of indigenous interests in land and resources of the indigenous nations. Who became the responsible ministry of government to deliver these programs that were intended to address these claims? Well, it became INAC.
Cultural program delivery developed in INAC, because that's what they do. However, claims cannot be addressed in processes formed around a program mindset. These are questions of justice, not of programs. Claims engage substantive questions around indigenous interests and crown fiduciary obligations, not some sort of policy that feels good because it on the surface appears to be dealing with an interest or an issue that is affecting us nationwide. How can a policy come to grips with a substantive interest of a distinctive group of Canadians known as indigenous peoples?
But it went to INAC, and it stayed there. It appears, from our work, that in large measure it's still there. This has been a problem.
I say that these are more matters for justice. There's a governing precept in the crown-indigenous relationship called “the honour of the crown”. The honour of the crown relates to the fiduciary relationship between the crown and indigenous peoples. This is a place for the law. It is a place where the guiding principles in a relationship, when it comes to claims, are law, based for the most part on the fiduciary relationship.
Indeed, the Supreme Court of Canada, in Haida II and Tsilhqot'in, has recently said that where treaties do not exist, there are government obligations to pursue treaty-making. Can that be done in a policy-based process that we call the “comprehensive claims policy” where there is no oversight by a body empowered to make sure that everybody's at the table and to make sure that they're there to negotiate in good faith? I say no.
Going back to what's happening on specific claims, we just heard that there are thought to be 400 claims. We opened our doors in June 2011. We've had a total of 90 claims. Why is that? Many of the claims that have gone to hearing and resulted in decisions have gone to judicial review in the Federal Court of Appeal. There's one pending in the Supreme Court of Canada.
It's natural that people to sit back and wait to see how it works out, but early decisions of the tribunal in Kitselas that were upheld on judicial review have not resulted, it seems, in any settlements of like claims. The Auditor General has made that point.
Why is this? If you have a policy group dealing with claims at the bureaucratic level, the idea of a precedent seems to mean very little to them because it's a program to be administered.
In stakeholder consultations when I was first appointed chair—and I am the first chairperson—we engaged broadly with stakeholders, in part through the advisory committee that we're allowed to constitute under our act. We learned there that there was absolutely no interest in the federal crown in negotiating a claim that had come before the tribunal.
This puzzled us, because we're judges, and we're used to getting in there and helping litigants settle matters. Judges no longer just sit back, sphinx-like, and listen. They get involved, because if they didn't, the courts would get completely bogged down. Ninety per cent of civil filings are settled. Many, many of those are due to judicial encouragement of ADR. In some matters, ADR is required.
The answer was, “No negotiation: the minister has rejected the claim.”
With your leave, I'll take a couple of minutes longer, Madam Chairperson.
If you lose that, you're really lost, aren't you?
Claims come to us that have been rejected by the minister or that have been in negotiation for three years without an outcome. In answer to the question of whether there is an openness to negotiation, because the act seems to contemplate that—even mediation—they say, no, why would we negotiate? The minister has rejected the claim.
We've been going for seven years and encouraging negotiation without any take-up until very recently. This is a problem with the process below. We don't hear appeals from ministerial decisions; they're not reviews. But if the bureaucratic mindset is that the minister has rejected this so there's no basis for a negotiation in the context of proceedings before the tribunal, that's the end of it.
Now, there's no transparency in the specific claims process until you get to the tribunal. We don't even get the record that's generated there at the start of the proceedings before us. We don't know why it didn't get accepted or why the negotiation failed. If we did, we could craft a summary proceeding for early assessment—and perhaps even mini-trials, non-binding opinions—that might get the parties taking a closer look at whether or not they should be at the table. Also, we have rules providing for mediation. There has been zero take-up on that because there's been no negotiation.
What's happened recently is that there has been a change. Some matters are going into negotiation. We are being asked, however, to put claims in abeyance while they negotiate, and we hear that these negotiations are going to take five years. That's patently ridiculous. There's nothing like a trial date to motivate a negotiation, nothing like it. You put a claim into abeyance with no trial date and there's no pressure.
Five years? This is back to the future. It's those long, long lags of time. We have claims that have been in the process for 20 years that have resulted in the creation of the tribunal, and now we're being asked to allow it to go back to a process where it can languish in a bureaucrat's office—I don't use that term pejoratively, except occasionally.
Voices: Oh, oh!
Mr. Justice Harry Slade: Where is the good news here?
Well, the good news is that it seems the Department of Justice—the —is now coming into the picture with respect to specific claims. You're probably aware of the September 6, 2017, joint announcement about a policy review.
I'm pretty sure that the had no idea that these people from INAC were saying, “You can't push her claim in the tribunal if you want to negotiate with us.” By the way, the funding disappears for litigation before the tribunal if they go into negotiations. Where, I ask, is the good faith in that?
I'm just going to say a couple of things about comprehensive claims.
You hear much about a commitment to the UN Declaration on the Rights of Indigenous Peoples. Well, there are two things that really would have to be addressed to go anywhere with the resolution of territorial interests there.
Identify the indigenous groups. There are not 634 indigenous groups. Those are bands. There are perhaps 50 to 60 indigenous nations defined by culture and language in this nation, 23 of which are probably in British Columbia.
So you go to court: how long would it take before you get any answers as to whose territory is whose in a zero-sum game in court? But you can't do it, in my respectful opinion, based on government policies that empower only the policy-maker. They've done better in Australia and New Zealand. They have tribunals; they can't make decisions, but they can certainly move everybody in that direction.
We don't have that, but clearly the federal government has the power to create it, and UNDRIP asks for it. Article 27 calls for a process to be developed in consultation with indigenous peoples to bring these matters forward, to resolve the questions, and to produce lasting outcomes. I am at a complete loss to understand why we do not have that in Canada.
Thank you for giving me the extra time. I welcome your questions.
You're getting me into a dangerous area for a judge, but I could retire any time, so you can always take a little risk.
With one qualification, I would support that idea. The qualification, however, is that if governments adopt UNDRIP as a framework, at some point they're going to have to deal with the question of free, prior, and informed consent.
Free, prior, and informed consent does not conform to the Canadian common law, because even where title is either proven or recognized—by treaty, say—there's a test for justification of infringement of a right. With respect, that is a product of decisions of the Supreme Court of Canada. There's a basic wisdom in it, because we are a nation of 35 million people drawing on a single resource—the land—and government, in my view, has to retain the power on exercise of provincial and federal jurisdictions to make decisions in relation to the land and resources in the public interest.
As I see it, the decisions of the Supreme Court of Canada create a proper balance, so your political statements based on free, prior, and informed consent are not at all helpful to this discussion. They give spokespersons a soapbox to stand on and hold this up as a golden standard that, if not achieved, means Canadian law—Canadian society—is fundamentally unjust, and that, I say, is nonsense.
As a framework, sure, but I come back to article 27. I don't know why nobody but me seems to mention it. Perhaps I'm missing something. As my wife says, “That's entirely possible, Harry.” It talks about crafting a process in consultation with indigenous groups. That, to my mind, is where you start.
Let's face it: most of UNDRIP really has long since been operable in Canada. It really comes down to the question of land and resource rights. Now, to get to that, you have to undo the Indian Act system. Sir John A. Macdonald in 1885 said that they were going to destroy tribal governance. How were they going to do it? Through the Indian Act. Read the tribunal decision in Beardy's v. Canada. It's one of mine. I addressed that.
The Indian Act has balkanized the indigenous nations in such a way that often—with respect—they don't even know who they are. In British Columbia, there are 234 bands and probably 23 nations. Why do you think we have all these overlapping claims? Because you get this group and another one 20 miles down the road; they're the same people, but they think they're different because they're two different bands. After 150 years under the Indian Act, it's not surprising, is it?
We need a process that enables these aggregations to define the indigenous groups, identify the territories, and bring about modern treaties. That, to my mind, is the real value of UNDRIP. It calls for that.