Welcome, everybody, to the public session of meeting number 95 of the Standing Committee on Indigenous and Northern Affairs, INAN, of the first session of the 42nd Parliament.
Today we are proud that one of our own is in front of us as a panellist to introduce his private member's bill, known as Bill .
Before we start, we always recognize that we're in a process of truth and reconciliation, really initiated by our but even before that by the Conservative government, which initiated a study. As we move through that process, we always recognize the lands we are on. We are meeting in Ottawa, the unceded territory of the Algonquin people.
At this point, the committee is proceeding as normal. Our presenter will have 10 minutes and then after that we'll have a series of questions.
Bonjour and welcome, MP Saganash. It's over to you.
Thank you, Chairperson. I'm very happy to be here today and that I was asked to come speak with you. I'm really happy that I'm the first one who's able to talk about this document I presented here in Ottawa. I hope you are going to ask me questions about this document, about what we're going to be doing today. I'm really thankful that you invited me to speak about my thoughts on this. I'm really thankful, again, that I'm here. I'm telling you right now that this document is really big and it's going to help us, not only aboriginal people but the whole nation in Canada. I think it's going to help us a lot in the future. I'm going to tell you why it's like that.
Thank you, Madam Chair. Those were words of greeting on my part. I was hoping to have my mother with me today, because she wanted to participate and listen in to this important discussion. She was the one who insisted that I go to law school. She is the one who insisted that I continue to defend my people, my land, my territory, and the resources on those lands and territories, and she put it this way. From the outset, she said, if you do this, go to law school, learn about the laws of the country and the world, that will allow your brothers and sisters, those who have chosen to continue with their way of life, to be able to do so on their land, where they come from.
I think that was the balance that we searched for in our families. Some of us had to choose to go to school. Some of us preferred to stay on the land. I want to salute my brothers and sisters who did choose to stay on the land and continue with the Cree way of life. About 30% of Cree still live off the land through hunting, fishing, and trapping. That is why the Eeyou Istchee, as we call our territory, is so important to all of us.
I started the debate in the House of Commons over Bill by saying that indigenous peoples' rights are human rights. For a long time, over 30 years now, the international community and the international forums have treated indigenous rights as human rights. It's been three decades now. I think in this country whenever we speak about indigenous peoples, we should speak about their rights as human rights as well.
You perhaps may know that the Supreme Court is going in that direction. If you read the Tsilhqot'in case, the Supreme Court refers to the Charter of Rights and Freedoms that we find in part I of our Constitution and section 35 rights that we find in part II of our Constitution as sister provisions. That's the word the Supreme Court uses, sister provisions. Both parts of our Constitution serve to limit the actions of governments, both provincial and federal. I think it's important to remember that.
I think it was important for me to start off by expressing the thought that the rights of indigenous peoples in this country are human rights.
I introduced Bill because I think, and we all agree around this table, that the time for reconciliation and justice for indigenous peoples in this country has come. I don't think there's anybody around this table who disagrees with that. The idea of a legislative framework does not necessarily come from me. Article 38 of the UN Declaration on the Rights of Indigenous Peoples calls on member states to work on all measures possible to make sure that the ends of the declaration are met, including legislative measures. Article 38 of UNDRIP talks about that legislative measure.
As you all know as well, in the recent past, there was an important development in terms of reconciliation in this country, with the tabling of the Truth and Reconciliation Commission's report and the 94 calls to action. If you read carefully Bill , you'll notice that clauses 4 and 5 are the legislative translation of calls to action 43 and 44.
In call to action 43, the commission called on us to fully adopt and implement the UN declaration as the framework for reconciliation in this country. In fact, it calls on the Government of Canada, the provinces, the territories, and the municipalities of this country to fully adopt and implement the UN declaration—they use both words “adopt” and “implement”—as the framework for reconciliation. Although all of the other calls to action are important, I think the fundamental and core call to action remains 43.
Under the heading “Reconciliation” in the calls to action, you find 43 and 44, and 44 talks about the national action plan that needs to be developed in co-operation with indigenous peoples of this country.
In fact, in the 94 calls to action, there are 16 references to the UN Declaration on the Rights of Indigenous Peoples. That's how important this document is for indigenous peoples in this country, but also for the almost 400 million indigenous individuals around the world who live in more than 70 countries on this planet. I think it was only appropriate that the first legislative step we need to take in that context of reconciliation and justice in this country will remain Bill .
I also mentioned during the debate that I consider Bill as perhaps the most important legislation that this Parliament of Canada has had to consider in a long time. I want to take that opportunity to welcome the support of the government. I'm hoping that at the end of the day, at the end of the process, the official opposition, Her Majesty's loyal opposition, will also support Bill C-262 as a way forward for reconciliation and justice in this country.
I see that my time is running out, but there was one element that struck me during the debate. It came from the official opposition, whereby adopting this bill would create an uncertainty. As a matter of fact, Madam Chair, I think the opposite will happen. If there's one provision in our Constitution that has created that sort of uncertainty, it is section 35. What did we mean by “aboriginal rights”? We know a little about treaty rights and their clarity in the treaties, but what did we mean by “aboriginal rights”? Does it include the right to self-determination of indigenous peoples? Does it include my right to speak my language in the House of Commons?
Those are the kinds of uncertainties and ambiguities that the adoption of section 35 created. That's why we have ended up most of the time in the court systems, because there was no agreement over the content of aboriginal rights. I think this bill will clarify that. Indigenous peoples have a right to self-determination in this country. The human rights committee back then confirmed that, with articles of the human rights covenants that Canada had signed on to, the right to self-determination applies to indigenous peoples. That was determined as early as 1999.
Madam Chair, I'm looking forward to questions within the next hour, and I certainly hope that I can answer the questions that are put forth.
There are many things, but I first want to thank the previous MPs who attempted to have similar legislation adopted in the past. I have in mind Denise Savoie and Tina Keeper. My previous bill was defeated at second reading by 17 votes by the former Conservative government, although they had apologized to indigenous peoples and certainly to indigenous people like me who attended residential schools. When you apologize for something on the one hand, you don't continue to deny the fundamental rights of the people who you said “I'm sorry” to on the other hand. That's what happened with the previous government. That was quite unfortunate.
I think that one of the important developments in the recent past was, as I've said, the Truth and Reconciliation Commission's report, and in particular the calls to action. The present government has promised to adopt and implement the UN declaration. I remember listening to 's first speech to the Assembly of First Nations and the chiefs in assembly back in December 2015. It was one of the important promises he made to indigenous peoples, which he reiterated at that meeting.
I think it was time. In fact, in my cross-country tour, in different communities across the country, both indigenous and non-indigenous, everyone was struck by this, and wondered why, after having made that promise on the one hand, the Liberal government was still not supporting my bill. That was the question: why is that? I think it was a welcome announcement that the present made last November to support the bill.
Like I said, it's time that we move on. Enough has been said internationally. We've all agreed with the promise that was made by this Liberal government with respect to justice and reconciliation. This bill delivers on that promise.
I used that expression during the debate because I'm the first MP proposing something of this nature, and this is significant. I think that's one part of it.
On the other hand, if we are serious about reconciliation and justice.... I use both words because they go together. There cannot be reconciliation in the absence of justice in this country. That's why I use both expressions. There's been enough talk about reconciliation. I think it is time for us to move on and do something concrete in that regard.
The government needs to be consistent with that reality. If you're saying you believe in justice and reconciliation, then all of your actions need to show that. All of your decisions need to show that. There was no free, prior, and informed consent that was sought in the decision to go ahead with the Site C dam, for instance. That's one example off the top of my head. There was no free, prior, and informed consent from indigenous people for that project. I think the same thing is going to happen with Kinder Morgan. You need to be consistent.
If you support and believe in the UN Declaration on the Rights of Indigenous Peoples, then your policies, your laws, and your decisions need to reflect that exactly.
Thank you to my colleague, who has really put a lot of years and passion into not only the work here in Parliament but his work previous to coming here.
We certainly recognize that the UN Declaration on the Rights of Indigenous Peoples and truth and reconciliation calls to action are an important road map for reconciliation and a lens that needs to be applied to what government does.
As you're aware, I have some concerns in terms of what your bill would do. I found it interesting when Mr. Vandal asked about whether section 35 and UNDRIP were going to work together, and he said “we hope”. It certainly showed to me that he had concerns also. It was like “we hope but we really don't know”. That was a very interesting statement.
This came up in the questions and answers, and it's one of these practical things that you worry about. You talk about Site C. There was no attempt to get free, prior, and informed consent. I look at something like the Kinder Morgan pipeline, which has a number of communities, indigenous communities all down the line, that have signed community benefit agreements. I would expect, if you signed a community benefit agreement, that's pretty well free, prior, and informed consent. You have a couple of bands that are reluctant.
First of all, can you talk about how you're going to, in a legislative framework, ever align that type of issue, because we're hearing not everybody...? Maybe I'll just leave it at that.
That's an important question. If you read subclause 2(1) in my bill, it says:
For greater certainty, nothing in this Act is to be construed so as to diminish or extinguish existing aboriginal or treaty rights
Let's make that clear first. I think it was important to insert a provision like that in the bill.
Second, to your question, it's an important one, too. You confirmed that there are some first nation communities that do agree with Kinder Morgan, and some won't. We need to make sure that everybody does. That's what the free, prior, and informed consent is all about that we find in UNDRIP.
In that respect, I want to quote—
One needs to understand that when I say it already has application in Canadian law, you'll find in our constitutional jurisprudence a lot of that, the need for consent. As early as 2004, for instance, in the Haida Nation case, the Supreme Court talked about the need for full consent of indigenous peoples in that spectrum of consultation—their “full consent” is the expression used in that case—over important matters that affect them.
I suggest that pipelines are an important matter for indigenous peoples because they have a direct impact on their rights and interests in this country.
Climate change is an important matter for indigenous peoples because that affects their rights and interests as distinct peoples in this country.
It also can be said that since 1975, for instance, the Cree have signed over 80 agreements in James Bay over resources, mining, forestry, hydro development, and so on—over 80 agreements since 1975, since we signed the first modern treaty in 1975. That's free, prior, and informed consent in action in this country since 1975.
I invite the committee to consider the final report of the study on indigenous peoples and the right to participate in decision-making. That was from the Human Rights Council and the expert mechanism on the rights of indigenous peoples. They did a study on free, prior, and informed consent. It would be interesting for this committee to take a look at that document. It dates back to 2011, I believe, August 17, and they outline what free, prior, and informed consent means, and how the element “free” implies no coercion, intimidation, or manipulation.
In the case of Site C, to go back to that, when B.C. Hydro sued the opponents of the Site C project for $4.5 million, that was intimidation. We talk about it in this report. “Prior” implies that consent is obtained in advance of any activity taking place. “Informed” implies that indigenous peoples have been provided with all information related to the activity, and that the information is objective, independent, and transparent. For a long time, Hydro-Québec would submit documents to the Cree only in French, and they know that Cree have English as their second language, so that's not the kind of “informed” that this right implies.
Consent of course implies that it has to be obtained prior to any development activity happening, which, in my recollection and experience in this country, never happens. Usually governments go ahead and approve projects without that consent being obtained. Consent can be given with conditions as well, according to this study, so it's important to take a look at these kinds of studies that are done by experts around the world to help us understand what free, prior, and informed consent means in this country.
With regard to free, prior, and informed consent, there is also the example of the James Bay and Northern Quebec Agreement, which I am more familiar with, since I am from Quebec. The same uncertainties and questions arose in that context. Today we are talking about pipelines and climate change, but back then, forests were also an issue. There were concerns about the impact that the agreement would have on the forestry industry. However, today the situation is relatively healthy.
What arrangements, compromises, or deals were made to attain the balance we see today?
Thank you for your question.
It is important to understand that recognizing the rights of indigenous peoples in no way endangers the environment or the economy of our country, even though we are heavily dependent on the natural resources found not only in Quebec, but across the country. Most of the non-indigenous communities in my riding depend on the development of local resources.
The rights of the Cree have been recognized and respected. That is why we have been able to negotiate partnerships for more than 40 years. The preamble of my bill and the United Nations Declaration on the Rights of Indigenous Peoples state that respect, partnership, and co-operation are the basic principles of a good relationship between peoples.
In order for two peoples to make progress, the most important thing is for them to have good relations. It is vital to clarify things and to establish very clear rules. That is the purpose of my bill, to clarify the existing rights of indigenous peoples. That way, all industries and everyone will know what rights we are talking about.
That is what happened in the case of the James Bay Cree. The James Bay and Northern Quebec Agreement clarified the situation in relation to the environment and sustainable development. It clarified who had the right to develop the land and how that development could be done. That helped make everything else clear. That is what we are seeing in northern Quebec.
Thank you, Madam Chair.
Meegwetch, Mr. Saganash. It is a pleasure to have you here with us. I know that we are not the only ones who are proud of you. All of Canada is proud of you too.
I do believe that history is going to look favourably upon all of your efforts, and I'm proud to be here asking questions.
I want to ask a question to follow on this theme around Quebec and the way that this might impact the rest of the country. As we know, the crown has provincial and federal aspects, and laws go beyond just constraining a particular government. They change cultures. One can presume that this bill, if passed, would have repercussions across a variety of jurisdictions. I want to hear your opinions on where you see this bill impacting not only the manner of behaviour of the federal government, but also our provincial and territorial governments.
I think it will have a positive impact on indigenous people, certainly, but for the rest of Canadians as well. I want to reiterate one point I mentioned before going more precisely to your question. At one point during the process of consultation throughout the country...but also certain of your ministers and colleagues, the , asked the following question: is there a precedent around the world for this kind of legislative framework for indigenous human rights? The answer is no.
I'm glad she posed that question, because Canada was the former human rights champion around the world. We lost that credibility for some reason over the past years. That's what other countries expect from us. That's why other countries are looking to Canada to take the lead on the recognition, and not only recognition but also respect for the fundamental human rights of indigenous peoples. Nothing less is expected from us. That's why we need to go in this direction.
Having this framework in place, because that's what the Truth and Reconciliation Commission has called on us to do, is delivering on that call to action. For a long time, given that our rights were not clarified in any document, this is what this bill and UNDRIP does. I think it was important to have that in place for the future. It will avoid a lot of legal battles in the courts. I think that's certain, but it will also provide that intention we need to bring whenever we consider legislation that will impact the rights of indigenous peoples in this country.
We already have an obligation under the Department of Justice Act, section 4.1. The Minister of Justice needs to make sure that the legislation, before it is tabled, is consistent with the Charter of Rights and Freedoms. We don't have the equivalent for aboriginal and treaty rights. This bill will do that too.
You'll have to give me a more particular example if you want me to answer that.
I think over the years there have been many decisions. Of course, like any court, they might at times contradict themselves from a previous ruling. That's unfortunate because that's not supposed to happen, but it does happen. We're all human I think, and we need to recognize that.
The trend has been very strong over the years, on many of the aspects we're discussing and debating today, especially with respect to our rights over our lands, territories, and resources. I take the time with decisions coming down from the Supreme Court, even with decisions that have nothing to do with aboriginal treaty rights in this country, to go over them. At times, the Supreme Court clarifies previous judgments, and it elaborates on certain constitutional principles at times in other rulings. It's important for people who are interested in constitutional law to follow those kinds of constitutional principles, which we get from the Supreme Court of Canada. I've always done that.
One of the important rulings for me was the Quebec secession reference case, whereby the Supreme Court determined in its opinion that political actors in this country, as we normally understand it, are not just the federal government and the provinces. It also must include the indigenous peoples of this country at all times in the discussions. As with my human rights, which are relative and not absolute, and the division of jurisdictions between the federal government and the provinces, we know in our system it's the provinces that have jurisdiction over natural resources. Again, the Supreme Court has clearly said that although the provinces have jurisdiction over their natural resources, that jurisdiction is not absolute because there are aboriginal rights and treaty rights over them.
I think the general strong trend has been in that direction throughout the years.
The other aspect of all this is that if you read subclause 2(2) and clause 3 of Bill , both talk about the UN declaration having application in Canadian law as we speak. Maybe you don't agree with it, and maybe they didn't realize that, but having this bill passed in third reading and through the Senate, we'll be clear on that for the future. I think that is what is needed in order to avoid that confusion.
Similar confusion was created when section 35 of the Constitution was adopted. What is the content of section 35 with respect to aboriginal rights?
Similar confusion was created when the James Bay and Northern Quebec Agreement, the first modern treaty, was signed in 1975. I remember those conversations. In these hunting and fishing associations throughout the province, people said, “Well if we're going to recognize the rights of the Cree and the Inuit to be able to hunt, fish, and trap throughout the year, without conditions, then there goes the entire moose population, there goes the entire caribou population, and there go all the fish in our lakes in Quebec.” Well, guess what. It never happened.
It's a similar situation here, in my view. Those rights exist because it is said that they are inherent, which means these fundamental rights exist because we, as people, exist right now, here—I'm talking to you, right?—and those are our inherent rights.
That does not create new law in any way, and it does not create new rights in any way. They already belong to me and my peoples.
Thank you, Madam Chair.
Mr. Saganash, I just want to reiterate, for my colleagues here, the enormous admiration we have developed for you and the great work we see you have done in bringing UNDRIP to the forefront in Canada.
Over the years—at least for the last 10 years—at every UN meeting, the lack of Canada's acceptance of UNDRIP has been pointed out, both by the UN Human Rights Council and in many other international fora.
I want to just pick up on one thing you said earlier, and then ask you a question.
One is that you indicated that indigenous rights are human rights. What I notice, as we mark the 70th anniversary of the Universal Declaration of Human Rights, is that it's somewhat curious that indigenous rights were not enshrined in the universal declaration. We see that development in Canada. We had the Canadian Charter of Rights and Freedoms and the Constitution Act of 1982.
I'm just wondering if you could give us a sense as to the evolution of indigenous rights as human rights. Going forward—whether it would be through and from the TRC or through case law—how do you see the framework you're proposing as impacting the development of policy and legislation in Canada?
Thank you for your kind comments.
I think it needs to be repeated that the rights of indigenous peoples have been treated as human rights in the international fora for over three decades now. They have always been treated as human rights at the international level. I have to point out again and insist on the fact that the UN Declaration on the Rights of Indigenous Peoples had been adopted by the UN General Assembly in 2007. It's been a decade now. I think we need to move on and do what we need to do in this country.
I think the first step is to recognize that these rights are human rights. The right of indigenous children to have a roof over their head is a human right. The right of indigenous communities to have clean drinking water in their communities is a human right. The right to have a toilet in those houses is a human right and so on. That's one aspect.
The second part of it is, as a lawyer, you probably know the way our court system works in this country. Judges and tribunals in this country are impartial institutions and people, and they can decide whether to apply the rights that we find in the UN declaration in their rulings or as references. It happened as early as 1987. The Supreme Court in that case referred to international human rights documents, and in particular, declarations, to interpret domestic law. That's why it must be said that although the UN Declaration on the Rights of Indigenous Peoples does not necessarily have the same binding effect as international treaties or international conventions—sure, that's true—but it does not mean they don't have legal effect.
Thank you, Madam Chair.
Thank you, Romeo, for sitting in the hot seat today.
This free, prior, and informed consent issue is a big part of the discussion, no doubt. I would say that free, prior, and informed consent is something all Canadians want and all Canadians get. Not everybody consents, but I know, for example, in my own community, there is a new power line proposal. Yes, there's a lot of consternation about where the route's going to go, whose land it's on, and what the payout is for the acres of land that get taken out of circulation, so to speak. We have a system that goes through and pays people for the land. We also all have the ability to go and vote for the government we desire. We vote for people we think will do a good job of administrating these things.
How is it that we have to have a different system? Why do we need a different system for indigenous peoples rather than having one system all Canadians participate in? Yes, there are lots of decisions made that I don't like, but we have a system where we have a vote and we choose people. When we don't like decisions that are made, we work harder, we try to convince more people, and we try to get a bigger movement going, and I understand that.
The other thing is that we live in the British system, for better or for worse. One of the beauties of the British system is that it always has taken into consideration minority groups, and typically minority groups have always had their voices within our system of government.
How do you balance the current system we have with what looks to me to be a proposal for a new system or an additional system on the side of that? I will let you run with the clock on that.