Good afternoon, everyone. Let's get the session started.
First of all, we recognize that we're on the unceded territory of the Algonquin people. We're in a process of truth and reconciliation with our indigenous people, the Métis, the first nations, and the Inuit, as part of the three major nations that are indigenous, just in case anybody forgets one of the groups.
We are still waiting for our second presenter, but the clerk has suggested that we go ahead and ask Professor Gunn to proceed, and hopefully Ms. McKay will arrive in the interim.
We are talking about the UN Declaration on the Rights of Indigenous Peoples.
Why don't we just begin?
Ms. Gunn, you can go ahead. You have 10 minutes, and then if the other presenter comes, she'll have 10 minutes to present, and then we will move into questioning.
It's all yours. Thanks.
Good afternoon, everyone. Thank you, so much, for having me here today. I am really excited to be here, both to speak about something that I spent a lot of time thinking about, which is the role of the UN declaration in promoting reconciliation in Canada, and also, particularly today of course, the bill before this committee.
I would like to start by acknowledging the traditional territory. I thank the Algonquins for their hospitality and for allowing us to be here. I recognize that this is unceded territory.
I also want to acknowledge a couple of the committee members. I already spoke briefly with the chair. That is the riding I grew up in, so it's very nice to meet her. I would also like to acknowledge member Saganash, who has worked so hard on these issues, both internationally and domestically.
Thank you for your work and for having me here.
I would be remiss not to acknowledge Will Amos. We worked briefly together at Ecojustice, a dog's age ago. I think I was articling and you were just starting at Ottawa, so it's very nice to see you as well.
My name is Brenda Gunn. I am a Métis woman from the Red River. I am an Associate Professor at the University of Manitoba, and I work in both international and constitutional law. I have developed a handbook on implementing the UN declaration, and I've done presentations all over the country and internationally about what the UN declaration means for us in Canada.
I'd like to commend this government for the strong commitment that it has made toward indigenous peoples, including the commitment to implement the UN declaration. I thought I would start today by explaining why I see the UN declaration as being important for reconciliation in Canada and then talk about why I think this bill is so important in its implementation.
When you read the preamble, you see a very compelling story being told, particularly one that's significant in Canada. That is, in 2007, the UN finally recognized indigenous peoples to be peoples and part of the family of the world. We were no longer these “fierce savages whose occupation was war”, in the words of Chief Justice Marshall in the Marshall trilogy, which continue to impact Canadian law today. We are now peoples with all the rights that come with that.
We're also indigenous, and we have a right to be indigenous. We have a recognized right to our collective identities, and there's a recognition that sometimes special measures may be necessary in order to protect our inherent rights. The UN declaration recognizes that colonization occurred and that it has a negative impact on indigenous peoples, in particular, through the dispossession of their lands, territories, and natural resources.
The UN declaration continues to state that the UN is convinced that the path forward requires resetting the relationship between indigenous peoples and Canada through recognizing and protecting indigenous peoples' inherent rights. Contrary to the opinion of some that recognizing special rights for special people would tear Canada apart, the UN declaration is clear that full and robust protection of indigenous peoples' rights will actually enhance harmonious relations between indigenous peoples and Canada.
The UN declaration explains that it is the denial of indigenous peoples' rights that is the cause of the current divisions between indigenous peoples and the rest of Canadians. If we want to reconcile in Canada, that means we have to shift the relationship, forming a new relationship based on the principles of justice, democracy, respect for human rights, non-discrimination, and good faith. Doing so shifts the relationship from a colonial one, where Canada has control over all aspects of indigenous peoples' lives, to one where indigenous peoples freely determine their own futures and are actively involved in all decisions that specifically impact their rights.
When you look through the UN declaration, the substantive rights, one of the key areas is that it recognizes that economic, social, and cultural rights in areas such as language rights, education, health care, housing, and economic development, are critical to the exercise of civil and political rights. There is no hierarchy of rights.
I think the bill before you today is an important step towards implementing the UN declaration in Canada, and it can put this government's words on reconciliation into action because of the way in which it clarifies that the UN declaration applies in Canada, requires a review of laws for consistency, and sets out the need to develop a national action plan and the expectation of periodic reporting.
In my reflection for today's comments, I was thinking about the way in which Canada really led the way on the recognition and affirmation of indigenous peoples' rights when it protected indigenous rights in the Constitution 35 years ago. But unfortunately, Canada no longer leads the world on indigenous rights protection. However, through Bill , Canada can again come back to the forefront of indigenous rights protection. Implementing the UN declaration is also key to fulfilling Canada's international human rights obligations.
One of the challenges I've seen in my work on implementing the UN declaration is the general lack of understanding of how international law applies in Canada.
While the Supreme Court of Canada jurisprudence is clear that declarations such as the UN declaration can and should be used to interpret domestic laws, including our Constitution, there has been hesitance by lawyers and judges to rely on the UN declaration in interpreting domestic law, mostly, I think, due to the lack of understanding of the role of international law domestically.
I think this bill is critical to overcoming the reticence and ignorance of many in the legal field on the relevance of the UN declaration in interpreting Canadian laws, including the Constitution.
This process of interpreting Canadian law in line with Canada's international human rights obligations may occur through court processes, but it can also occur through general legislative and policy reviews and the taking of necessary amendments, as well as through negotiation. It's important to remember that law is not static, not international human rights law and not Canadian constitutional law.
We often say our Constitution is a living tree, with strong roots and an ability to grow and adapt to circumstances. I think the UN declaration is key to helping our Constitution grow and adapt to the changing circumstances in the Canadian context. The presumption of conformity, where domestic laws are interpreted in line with Canada's international human rights obligations, is a well-established principle. More importantly, I think that through this bill, we can also allow Canada to implement its international human rights obligations owed to other nation-states.
Interpreting the Canadian Constitution in light of the UN declaration is also really important because of the fact that Canada, when it goes to international human rights bodies, often points to the Canadian Constitution as something in which it has implemented its international human rights obligations. By using the UN declaration to interpret the Canadian Constitution, we both advance reconciliation in Canada and can help Canada implement its international human rights obligations.
I want to thank the committee for its time this afternoon. I look forward to your questions.
Thank you. Again, my apologies to everyone.
I'd like to start by thanking the Algonquin nation for providing an opportunity for us to speak on their traditional territory here today, and I'd like to thank you for the opportunity to speak with you.
It's nice to see a couple of familiar faces, those of my own MP, , and of course —it's nice to see you—and Brenda.
I have a background in social work and law. I'm a Métis person from Manitoba. I had the honour of participating in the draft declaration on the working group for a couple of years right at the end before it was adopted by the UN Human Rights Council in 2006 and then the UN General Assembly in 2007.
I thought I might take this time to focus on the economic, social, and cultural rights contained in the declaration, as well as the specific provisions around violence and discrimination. These are important provisions, often particularly for indigenous women, who fought hard to ensure that the rights related to discrimination and violence were an explicit part of the declaration.
I'd like to start by talking about the interrelationship between the rights and other foundational rights within the declaration, such as the right to self-determination and the promotion of indigenous legal traditions and systems.
When it was adopted on September 13, 2007, it was an historic achievement for the international human rights community. It was the first time that indigenous peoples were welcomed into the world family. To me, the strength of indigenous peoples' abilities to negotiate and resolve conflicts at the table was demonstrated by the fact that we were able to come to a text that, while not perfect, we could live with, knowing that our key interests and rights would be protected for future generations. In the end, together with our allies from human rights organizations and friendly states, I think indigenous peoples were able to negotiate a declaration that addresses a wide range of concerns.
Eleven years later, here we are, looking at how we breathe life into these rights. The declaration covers an extraordinary range of rights and concerns, all of which reflect indigenous peoples' lived experience of colonization and genocide, as well as our values and our aspirations for a world in which our children and our children's children will be able to live in dignity and safety as indigenous peoples on our own traditional territories, while self-governing nations promote sustainable models of development consistent with indigenous customs and laws.
But the declaration is more than the sum of its parts. It affirms the right to self-determination. It affirms our rights to lands, territories, and resources. It affirms the right to maintain and to pass on our languages, our customs, and our traditions in a wide range of areas from sustainable development to education. It affirms the rights of indigenous women and children to live free from violence and discrimination, but it also draws a link between these rights. It says that these rights are all part of a whole that states, courts, corporations, non-government, and our own governments must respect and uphold.
It also draws a link between these rights and all the rights affirmed in all other international human rights instruments, such as the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the UN Convention on the Rights of the Child, etc. The declaration guides and informs application of these standards in the context of the collective rights of our people.
As you are well aware, a basic concept of international law is that all rights are interdependent, indivisible, and inseparable.
When we were looking at articles in the UN declaration and we had states like France saying that human rights are individual rights by their very nature, that's the end of the story, and there's no need for collective rights, we had to say to them, “No, actually they're not, and let's take the example of women facing violence”. Why are they in harm's way? Why do they experience alarmingly high rates of violence? Why do they go missing and murdered so often? It's because of all the systemic pressures on the lives of indigenous peoples, because they're alienated from their traditional territories, because they suffer low socio-economic status and don't have equal access to education and employment. All those things have to be looked at together, and the declaration does a very nice job of doing that.
At the time, as well, when we were negotiating the declaration, that wasn't very well understood. States really didn't see the interaction between collective and individual rights very well, and we had to do a lot of work to explain that.
When we look at today with the systemic nature of issues facing women, we hear about that at the inquiry on missing and murdered indigenous women, for example. We hear about how the impacts of the residential schools and colonization have affected their lives. In our communities there is growing awareness of that as a key issue, a fundamental issue.
As an advocate for indigenous women, when I participated in the draft declaration working group, it was in the early 2000s. That was a time when things really were at such a different level. Now there is so much more awareness, and sometimes that can lead us to get a bit lackadaisical. We, as Canada, have a pretty good human rights system. We have good constitutional law. We have lots of protections. But the fact that we still have all those socio-economic indicators draws out the reason why this act is necessary. We need to demonstrate that, as Canada, we're purposely going to reflect on what the rights are in the declaration and how we are going to live up to those. Part of that is recognizing that right now we don't. Right now, we do have human rights issues facing indigenous people, indigenous women, and indigenous youth.
To me, a challenge for us is to ensure that we give life to the principle of indivisibility at each step of the way. I was going to give some examples of that, but I know I'm almost out of time. If you look at articles 20, 21, and 22, which deal with economic, social, and cultural rights and the right to live free from violence and discrimination, and compare that to article 23, which looks at the right to development, and article 24, which looks at the right to health of indigenous peoples, you can see how they're all interrelated, and when you hear about the example of mining companies exploiting indigenous women in northern B.C., that's a good example of how these rights are interrelated.
I just wanted to end with a personal reflection. I was raised in the 1970s by parents who dedicated their lives to social justice. My dad was an academic. He started the native studies departments at Brandon University, at Trent University, and at the University of Manitoba. I didn't grow up on the land. I didn't grow up with a lot of those traditional practices, but I grew up with a strong sense of identity as a Métis person connected to my Métis culture. I was taught to always share and to be thankful for what I had. I think sharing is a fundamental belief of Métis people, and of course, it's shared with others, but it's a very central one in our community.
Today, four or five decades later from the time my dad was in residential school, my son is learning about reconciliation and the UN declaration in his school.
I'll end there, so we have time for some questions.
Thank you, Madam Chair.
Thank you to both of you for your presence today. It's very well appreciated. Your comments are extremely important for our work on this proposed legislation. I wholeheartedly agree that this Bill is important for reconciliation, as you said, Brenda, and critical as well.
I believe that, because there is no precedent around the world for this kind of legislation, it is a framework legislation. There is no precedent. In that sense, it will allow Canada to, as you said, come back to the forefront in the protection of and respect for indigenous peoples' fundamental rights. Thank you to both of you for your comments.
I want to start with you, Brenda. You spoke about this bill and its provision on periodic reporting. That provision comes from previous federal legislation that was adopted back in 1976, I believe. For the implementation act of the James Bay and Northern Quebec Agreement, we had a similar provision. For the next 25 years, the minister had to report to Parliament.
Do you see a difference between this periodic reporting that's provided for in Bill and the kind of periodic reporting that Canada has to do with respect to its international obligations?
Thank you for your question.
I'm still not quite sure I understand or can agree that there are legislative concerns, but I do understand that there are concerns on this, so maybe I just took too early a flight and my brain is getting mushy.
I think the role of this body and this legislation is whether it takes us to the next step. It's hard to predict the future, and from my analysis, from everything I've done, this legislation is the next critical step that this government needs to take to implement its international human rights obligations and put action to words. I am confident in that.
In 20 years I may be back before a similar committee and we might have learned a lot. I can't say that, but I am quite confident that this is the appropriate next step and that it will take the relationship between indigenous peoples and the Canadian state to the next level and will move it further along in a positive direction.
I understand the concerns about consent. We want to make sure we understand what this declaration is about and what this legislation is setting out to do. What I would hope would happen is that we would be having more conversations. If a group of indigenous people are failing to give their consent, if they're saying no, the government or the regulator or the industry needs to ask why they are saying no. Why isn't it consulting? What is there still an issue? What interest is still not being addressed? What is the concern? The conversations should continue. They may also need to ask themselves what has failed or what has gone wrong such that this process has not successfully led to an agreement.
Then I think there would be enough checks and balances in place that if the government has honestly taken every step, has listened to indigenous peoples, and has addressed their concerns, you still have the power to make decisions. Where the consent isn't sought, I don't know if it will always land in court, but I do think this will improve those processes.
Thank you very much. It's good to see all of you. I've become a bit of a regular, and it's always nice to be able to have conversations about important indigenous issues such as Bill .
I grew up in an indigenous rights or Inuit rights household. My father went away to work on the repatriation of the Constitution and worked on land claims negotiations for a number of years. The idea of the United Nations declaration and the time that it has taken not only for it to go through the UN processes but then also for Canada to adopt it, still falls generally within my lifetime of a little over 40 years.
I want to start with that, the idea that it has taken over 30 years to develop the declaration. It represented the first time that indigenous peoples worked with states to develop an international instrument. After the declaration was passed by the General Assembly, it took almost 10 more years for Canada to offer an unqualified endorsement of the declaration. Even then, we could interpret this endorsement as including the qualification that the declaration should be interpreted through the lens of Canada's Constitution.
The declaration represents an international consensus regarding the minimum standards of treatment of indigenous peoples as human beings. It's an articulation of the existing minimum standards of treatment of indigenous peoples under international human rights law. The purpose of international human rights law is to ensure that all persons and all peoples do not experience atrocities, are treated with dignity, and may live in societies free of discrimination.
One of the reasons for the declaration is that international human rights law did not adequately protect the rights of indigenous peoples due to our close connections to our homelands, a global legacy of colonialism and genocide, and the collective nature of many of our rights. The point is, the declaration is not a gold standard or a ceiling; rather, it's a minimum standard to avoid genocide and to ensure our dignity as human beings.
International human rights instruments such as the declaration are meant to ensure the protection of indigenous peoples from state conduct that might violate their rights. Failing to address economic, social, and cultural rights as rights means that the socio-economic gap between Inuit and non-Inuit will continue to grow.
The declaration is not a policy instrument. The UN declaration is an articulation of international law standards, which are binding on Canada under international law and which apply to indigenous peoples. It's not aspirational in its list of objectives linked to reconciliation. It actually has the force of law.
Compliance with Canada's international obligations means more than changing program criteria or operational practices in one or two federal departments. Canada's Constitution must be interpreted consistent with the declaration, and not vice versa. This includes section 35 of the Constitution, as well as the constitutional division of powers. They're not valid limits in the implementation of the declaration.
This government talked about section 35 and a “full box of rights” concept when the Canadian government adopted the United Nations Declaration on the Rights of Indigenous Peoples. From a very practical, logical standpoint, Inuit would understand, then, that the Constitution would have to be opened up, that we would actually have to place the declaration inside of the Canadian Constitution in order to have the recourse and the restitution that usually accompanies rights.
In the absence of restitution or recourse for violations of our indigenous rights, we still would have to depend upon the courts and upon Supreme Court rulings in order to continue the slow path towards fully understanding how to assert our rights in Canada, rights that the Canadian government does not create and that exist in international law and for indigenous peoples. It would be inconsistent with the nature and character of the declaration or any other human rights to suppress and deny them whenever a country deems compliance to be inconvenient.
The enforcement of human rights involves restraining the conduct of a state. Through this lens, it doesn't make sense to propose requesting the state report to itself on compliance with its own international human rights obligations. Independent oversight is essentially important to the success of Bill . For example, statutory human rights mechanisms across this country are responsible for promoting and enforcing human rights rather than government departments.
Last year we produced two discussion papers on the implementation of the UN declaration. Among other things, these two papers called for a comprehensive legislative approach for implementation and outlined what we consider to be comprehensive.
First, when it comes to understanding an instrument such as the declaration, it's critical to recognize that the rights contained in the declaration are interrelated, interdependent, indivisible, and interconnected. It's not helpful to attempt to approach implementation of the declaration by examining individual articles as specific obligations. In our experience, such an approach leads to very narrow interpretations of the obligations and serves to hinder implementation rather than facilitate it.
Second, many of the standards articulated in the declaration implicate the constitutional division of powers. The federal government has several policy levers that it can use in order to encourage implementation of the declaration sub-nationally, ranging from reporting on implementation in provinces and territories to using the federal spending power to link implementation of the declaration to transfers to provinces and territories. The mere existence of a constitutional division of powers is no excuse to ignore the fundamental human rights of indigenous peoples.
Third, a comprehensive scheme for implementation requires a means of seeking redress for alleged violations to the declaration. If the declaration articulates the fundamental rights of indigenous peoples, then we ask, what is a right without a remedy? ITK has proposed the development of a national indigenous human rights institution operating consistent with the Paris principles to accomplish this. The 1993 Paris principles provide the international benchmarks against which national human rights institutions can be accredited by the the Global Alliance of National Human Rights Institutions.
Finally, reporting on implementation must be done by an independent party. Those who are tasked with implementing the declaration should not also evaluate their own success.
We note that you have already heard from many who recognize that Bill alone will not accomplish the full implementation of the United Nations declaration. Others have referred to the need for additional reforms, policies, and operational practices. For ITK, full implementation of the declaration requires a comprehensive approach. We would seek to improve Bill C-262 in order to ensure that the legislation fills gaps that cannot easily be accomplished through changes to policies, programs, or operational practices.
I think of language rights in this country and how they have evolved over time. I especially think of the francophone language rights, and I think of francophone language rights being articulated in a complex, overarching, rights-based framework in this country. Even minority francophone populations have the right to go to school and to have school boards within those specific spaces. They have the right to government services in the French language. These are very practical things.
For indigenous peoples, especially in relation to Inuktut, our language, we have rights that are articulated through the United Nations declaration. We now have a government that has pledged to implement those rights, but you cannot compare the implementation of the rights for indigenous languages in this country to the implementation of francophone rights for language in this country.
We want to get to that same space, and the mechanisms and the legislation that we create and the way in which we use the Constitution, federal legislation, and then mechanisms within the provinces and territories will hopefully one day get us to that space where we have the same ability to exercise our rights as other ethnicities do in this country to exercise theirs.
I give that as an example because I think it is a practical one and one that completely overlaps with the way that you can think about Bill versus the way that you might think about your own place in this country and the rights that you hold.