I call this meeting to order.
I will start by acknowledging that when in Ottawa, we meet on the traditional unceded territory of the Algonquin people. Here, where I am, is the traditional territory of the Anishinabe, Haudenosaunee and Chonnonton first nations.
Pursuant to Standing Order 108(2) and the motion adopted on February 25, the committee is continuing its study of the subject matter of Bill , an act respecting the United Nations Declaration on the Rights of Indigenous Peoples, and to make related and consequential amendments to other acts.
To ensure an orderly meeting, participants may speak and listen in the official language of their choice. The globe icon at the bottom of the screen allows you to select either the floor, English or French. Choose what you want, and if you do speak in two languages, English and French, you don't need to change that. The technology will pick it up.
When speaking, ensure that your video is turned on. Please speak slowly and clearly. When you're not speaking, your mike should be on mute.
Pursuant to the motion adopted on March 9, I must inform the committee that Natan Obed has not completed the technical pretest.
With us today by video conference, from the AFN, are National Chief Perry Bellegarde, Wilton Littlechild and Mary Ellen Turpel-Lafond.
Thank you, all, for taking the time to appear.
The committee is being asked to allow an extension for the witness statement time beyond the current approved six minutes. As chair, I am reluctant to adjust the rule in view of the unfairness to the previous witnesses and the precedent it will create for future witnesses. As well, we have a number of written submissions that have taken more than six minutes to read, which suggests to me that, as we often tell witnesses, any matters or points of view they feel might have been missed or need further emphasis would be accepted after the meeting as supplemental documents to their brief.
In view of this, I now ask the committee for unanimous consent that notwithstanding the routine motion governing time for opening remarks and questioning of witnesses that the AFN be allotted up to 15 minutes for their opening presentation. Those who do not wish to give unanimous consent, please unmute now to indicate so.
Is there anyone who is opposed to unanimous consent for the extension?
Seeing none, we approve the extension for 15 minutes to Mr. Bellegarde and his associates.
Perry, welcome. It's so nice to have this opportunity to hear from the AFN.
Please go ahead for 15 minutes.
Thank you, Chair, and thank you to all of the committee members for agreeing to the 15-minute time.
[Witness spoke in Cree]
That was just a little bit in Cree for my friends and relatives.
I'm very happy to be here with all of you.
I used one of my spirit names, King Thunderbird Child. That is one of the names I carry. I'm from Little Black Bear First Nation and Treaty 4 territory in southern Saskatchewan. I gave thanks to the creator for this beautiful day and I acknowledged as well the Algonquin peoples here in the Odawa territory, where I'm sitting and working from today, their ancestral lands.
Chairman Bratina and honourable committee members, thank you so much for this opportunity.
I also want to acknowledge Mary Ellen Turpel-Lafond, who is with me on this presentation, and Willie Littlechild as well. I acknowledge them and thank them for their work.
Our Assembly of First Nations has long supported the adoption of a clear and strong legislative blueprint to advance the implementation of the United Nations declaration.
I appeared before this committee three years ago to support the adoption of Bill , the private member's bill brought forward by Romeo Saganash, so I'm very pleased to now speak in support of a government bill that builds on the foundations of Bill C-262.
The Assembly of First Nations chiefs-in-assembly have passed numerous resolutions calling for the full implementation of the declaration. These resolutions included support for the adoption of Bill .
When a filibuster prevented Bill from coming to a final vote in the Senate, where it did have sufficient support to be passed, our Assembly of First Nations chiefs-in-assembly passed a resolution in December 2019 calling for a government bill as strong or stronger than Bill C-262. That's my mandate. That's the direction the chiefs of Canada gave me as national chief: to get a government bill that's as strong as Bill C-262.
Bill meets that test. Bill C-15 provides a principled and pragmatic path forward to ensure that Canada respects and upholds fundamental human rights that have been affirmed and reaffirmed by the international community many times through consensus resolutions of the UN General Assembly.
I want to emphasize that the declaration did not create new rights, and neither does this proposed new bill. They also do not impinge on or detract from any inherent or treaty rights.
When I testified before this committee about Bill , I felt very strongly that a collaborative and coordinated approach to implementing the declaration was critical to closing the social and economic gap facing first nations people.
Today, I am even more convinced that implementation legislation is the right way forward. I also applaud the work of elected officials in other jurisdictions who have taken steps to implement the United Nations declaration and note the chiefs' work with British Columbia in achieving the unanimous passage of a law in the Legislative Assembly of British Columbia on November 28, 2019.
Given the deep racism and discrimination that first nations still face every day, Bill 's critical commitment to combat all forms of discrimination makes this bill both timely and urgent. I have seen how in B.C., with the implementation of the declaration, important work has been undertaken to address the racism against indigenous peoples in the health care system, using the standards in the declaration to bring people together in the health care system.
Now, we know that every bill can be improved. Since the tabling of Bill , we have heard critiques and suggestions for improvement—most importantly, from indigenous peoples ourselves. Some AFN regional chiefs and first nations leadership have appeared before you and have identified areas for improvement from their regional perspectives. You should listen carefully to those positions. In Canada, some first nations are in support of Bill C-15 and some are against Bill C-15, while others support it with amendments.
What I am tabling today is a contribution from the Assembly of First Nations that constitutes some relatively straightforward suggestions for improvements. These are intended to respond to the overall objective of first nations to make the bill stronger and clearer. So this is indeed an historic moment.
The Truth and Reconciliation Commission of Canada looked closely at the UN declaration and concluded that the declaration was “the framework for reconciliation at all levels and across all sectors of Canadian society.” They set that out as their first principle of reconciliation. That's how important the declaration is as a source of guidance and as a foundation for action.
Canadians have embraced the cause of reconciliation; implementation legislation is crucial to bringing that commitment to life.
With the improvements we've tabled, Bill will better enable us to move forward in a collaborative and coordinated way, consistent with first nations treaty and inherent rights and Canada's legal obligations.
I'd like to review those 12 improvements right now.
Number one is preamble clause 6. It's our recommendation that this provision is not accurate and should be deleted.
Number two is preamble clause 8. It's our recommendation that the word “racism” be added to this clause. Racism is a critical daily concern for first nations, and we believe strongly that it should be named.
Number three is preamble clause 9. It's our recommendation that the paragraph include explicit reference to the doctrines of discovery and terra nullius, and to be clear that, as the Supreme Court of Canada said in the Tsilhquot'in Nation case in 2014, these doctrines should not be part of the law or policies of Canada.
With regard to clause 2(2), it's our recommendation that the non-derogation clause be revised to more accurately reflect the working of the UN declaration, article 37, the previous approach in Bill C-262, and wording has been provided for you to consider.
Number five, it's also recommended that you consider adding two new clauses in the interpretation section, clause 2, to avoid any confusion or misinterpretation on some matters of great importance to first nations. The first of these two new clauses is clause 2(4):
For greater certainty, the rights of Indigenous peoples, including treaty rights, must be interpreted flexibly so as to permit their evolution over time and any approach constituting frozen rights must be rejected.
This provision is important because we cannot permit interpretation of treaty rights or any of the rights of indigenous peoples as frozen in time. Approaches that reflect stereotypes and old ideas, especially on treaty rights, must be overcome as an ongoing obstacle to moving forward.
Number six, and the second of the two new clauses, is 2(5):
For greater certainty, nothing in this Act is to be construed so as to diminish or extinguish the rights of Indigenous peoples, including treaty rights.
This provision makes it clear that extinguishment of the rights of indigenous peoples is not acceptable under any circumstances and cannot be part of Canada's laws or policies. Indigenous peoples have been subject to policies that sought to extinguish our rights and identities, such as the residential schools and other unilateral crown policies. Extinguishment is a systemic barrier to reconciliation that Canada must permanently and clearly reject.
Number seven, it's our recommendation that the subtitle for clause 4 or the purpose section is incorrect and it should be titled “Purposes”. Romeo Saganash spoke to this issue in his appearance on March 11. This is an obvious grammatical problem, but could lead to inaccurate interpretation in the future and should be fixed, as it has been flagged by first nations as a concern. I urge you to correct this at this study of the bill by committee members.
Number eight, in this same clause, it's recommended that the word “framework” be removed. As acknowledged in the preamble of this bill, the UN declaration itself is the framework, and reference to other frameworks simply cause confusion.
Number nine, I also note that the reference to the “Government of Canada” in the purpose clause 4 must be removed because Canada's obligation extends not just to government, but to Parliament, and this wording as it currently reads is inaccurate. The phrase “Government of Canada” could simply be removed, and I recommend you do that as we show in the table submitted.
Number 10, it is recommended that the time frame set out in clause 6 for the action plan be reduced from the three years to two years. Implementation is already long overdue. Canada should have begun implementing the declaration when it was adopted as a global minimum standard in 2007. Canada has been committed to implementing the declaration without qualification since 2017. I don't think it's necessary to wait another three years.
Number 11—which is similar to the preamble provision in number eight—the recommendation is to add the word “racism”. This word also must be added to paragraph 6(2)(a), as the wording is tracked in both parts of the bill.
Finally, number 12, I recommend that the words “implement”, “implementing” and “implementation” be used in the bill only in relation to implementing the declaration. For all other uses, I recommend that expressions like “carry out” be substituted, and you will see those suggestions in the table attached. If I have missed other examples, as the First Nations Leadership Council of British Columbia has indicated in their submission to you, I recommend that we adopt those recommendations to ensure that the entire bill is corrected, so that “implementation” is only used in relation to implementing the declaration.
Bill deserves the support of this committee and the support of all members of Parliament and senators. In my view, the improvements we have brought forward are modest and reasonable, and I urge you to adopt them when your committee gets to that part of your deliberations.
To conclude, I want to be very clear. The AFN is eager to see Bill move forward to final votes in the House of Commons and the Senate as soon as possible. First nations leaders and legal experts like Chief Littlechild poured their heart and soul into the creation of the declaration. They did this for a reason. They went to the United Nations year after year for more than two decades because they saw this international human rights instrument as key to building a new relationship with Canada.
Canadian government officials were also active participants through that long process at the United Nations. In fact, Canada deserves a lot of credit for helping to build support among other states so that the declaration could be finalized and adopted. This is something that we accomplished together and something that Canadians can be proud of. Yet, despite what was accomplished, more than 13 years have passed now since the declaration was adopted by the UN General Assembly, more than 13 years since the UN proclaimed the declaration as “the minimum standards for the survival, dignity and well-being of the indigenous peoples [in all regions] of the world.” In this time we have had expressions of support for the declaration from federal, provincial, territorial and municipal governments of all political stripes.
Canada has been part of numerous consensus resolutions at the UN committing to domestic implementation. Canada has made commitments to the indigenous peoples of the world that it would implement the declaration. It's time to complete this and make good on these commitments by working together. Canada has added the commitment to implement the UN declaration into the text of other laws passed by Parliament, including important bills on the inherent right of self-government in relation to child welfare and indigenous languages. What we still lack, however, is the legislation that implements the declaration and sets us on a course of recognition of rights and provides a framework for reconciliation, as the TRC wisely called for action. Bill provides that path. It's important for first nations, and I believe it is important for all Canadians to seize this opportunity now. We need to hear the words “royal assent” before the end of June.
Thank you. Kinanaskomitinawow.
Thank you, National Chief.
Good afternoon, everyone. I'm zooming into our circle from the territory of the Musqueam, Squamish and Tsleil-Waututh peoples in beautiful Vancouver today.
I want to contribute to the response to the question by just saying, with the greatest amount of respect, that some of the commentary about this bill, particularly promoting the idea that free, prior and informed consent is a dangerous concept, is incorrect and represents a kind of fearmongering that's rooted in fundamental misunderstandings about how consent is operationalized as well as about the current status of the law in Canada.
The law in Canada is quite strong that first nations in particular on their core territories when projects are under way, if they go forward without proper involvement, engagement, or consent of the first nations.... There has been a significant amount of litigation because there has been uncertainty, and some of these fundamental human rights principles have not been protected.
The concept of free, prior and informed consent is already enshrined in law. How it's operationalized is the key. Certainly, there has been a significant amount of work done on this, in particular in the British Columbia context where the UN declaration was fully supported in November 2019. It brought into British Columbia law the concept of working closely. Whether it's mining companies or other companies, they work very closely with first nations from the beginning. The whole concept is to operationalize that in a positive way that respects and upholds the rights of indigenous peoples. It is not against development. Concepts of sustainable development and involvement of community are there.
The idea that free, prior and informed consent is some kind of a veto is simply not supported, and that is not how it's operationalized.
I would just add to the national chief's response to your question to say that it is very important. Article 19 is very significant. It promotes stability and certainty in the economy. It's quite a valuable concept. Our experience has been, contrary to some of the fearmongering about it, that it's a valuable concept. Of course, it is internationally endorsed that it become more explicitly part of the statutory foundation of Canada.
First of all, we all know how hard fought it was to add the rights to into the Constitution Act in 1982 in section 35, as well in section 25 of the charter. Unfortunately, the history of the last 40 years has been one where indigenous peoples have had to fight hard for the recognition of their rights, including recognition of their title.
A lot of that jurisprudence has been really hard because, for some of us who have been involved in those cases, the Crown has taken a very adversarial and hostile approach to the existence of the rights of indigenous peoples, and it has been a challenge. Section 35 of the Constitution Act is a very important provision that indigenous people fought hard for. While it has been interpreted mostly by courts, where there are no indigenous people present, those rights are very important.
The declaration as an international instrument is there to assist us to have a better discussion about the right of indigenous people in section 35, because the declaration brings good information and value in terms of what the standards, principles and rights should be.
In my view, the declaration is a way of interpreting our constitutional rights that gives us a better set of understandings of how to frame issues for indigenous people. I know that the national chief has spoken a lot about the issues of racism and discrimination.
If we look at article 2 of the UN declaration, which says that indigenous people have rights like all other human beings, including the right to be free from discrimination, I'm sure no one on this committee would disagree with that, but that isn't expressed very clearly in our charter or in our Constitution and needs to be reinforced, because we have seen very much, for instance during this pandemic, how much systemic discrimination and racism indigenous people are experiencing.
The Constitution of Canada is there. Those rights are there. They are important, but the declaration provides through this bill an opportunity to promote a more reconciliation-focused approach to get away from the highly conflictual, adversarial approach and to shift to recognition of rights. It's extremely valuable legally, but it does not in any way take away from the constitutional rights of indigenous people, and there is a non-derogation clause in Bill . The national chief has tabled some suggestions on how that should probably be strengthened to better reflect Bill based on the concerns of first nations. There is delicate balancing when we implement international laws, and Bill C-15 does support that.
Thank you for that question.
First of all, with regard to the status of the preamble, as you know, preambles are an aid to interpretation. They are not independently enforced, but they are an aid and they state the framework for the legislation. The preamble is important, and the preambular provisions to this bill are very valuable, strong and important.
As the national chief has submitted on behalf of AFN, there is a requirement, though, in our respectful view, for improvements. In particular, we've highlighted three of them. One is very straight forward, adding the word “racism”, which appears to be an oversight.
On the more substantive one, which is recognizing and denouncing the concept of terra nullius and the doctrine of discovery, that is important in the preamble. It, of course, remains open to members of Parliament or senators to think about whether or not they would like that substantively in the body of the bill as well as the preamble. It does have force in the preamble, but it is quite important to be clear that the doctrine of discovery and terra nullius are specifically doctrines of moral superiority that should be rejected. I know that's been testified to by others during these hearings.
The interpretive value of a preamble is significant. When there's ambiguity, the preamble is used and looked at. The preamble sets the broad context of promoting reconciliation, responding to the Truth and Reconciliation Commission, and, more importantly, in contrast to Bill , when Romeo Saganash's very important bill came forward, it did not have some of the preamble provisions that are here. It was a different kind of bill—a different time.
However, the emphasis on addressing racism, discrimination and all forms of violence against indigenous people is important in the preamble as well as in the action plan, because indigenous peoples, in the last number of years, have been the target of specific violence when they've stood up to assert rights. They have attracted that.... We've had many issues with policing and so forth, and this is quite important, as the national chief tabled today, that this preamble be strengthened accordingly.
I'm certainly happy to reflect on this. There are two kinds of concerns, as you well know as committee members, that have been raised, and national chief has spoken to these.
First of all, there is an element of what I would call “fearmongering” about the concept of free, prior and informed consent, that somehow that will cause economic damage and so forth. In fact, free, prior and informed consent, and operationalizing that by having industry, government and first nations work together appropriately early, in the context of recognizing the rights, provides more economic stability, certainty and security.
It should have been operationalized a long time ago. Unfortunately, many first nations had to assert their rights and have them clearly recognized in the Supreme Court.
Some of the fears around that are misplaced, in my respectful view, and the AFN, the chiefs of Canada, have been very clear to say that this shift needs to be more complete. That's one very important area.
The other area, I would conclude, is that there indigenous people have concerns about any legislation, because there has been a cycle of trust and mistrust in terms of the actions of government. It's very important—as I think a well-known indigenous leader, Ellen Gabriel, wrote recently about this—that this bill has the potential to break that cycle of trust and mistrust and shift to a better foundation. While no single legislation can do that—relationships need to be strengthened and supported—this legislation goes a long way to beginning that process, very much supported at the legal and technical levels, and, of course, as national chief has said, clearly mandated through resolution by the chiefs in assembly at the AFN level.
Thank you so much, Chair.
It is very good to be here with you all this morning for such an important topic. I believe you have the submission we sent along yesterday.
I am the president of Inuit Tapiriit Kanatami, the national representational organization for Canada's 65,000 Inuit. We live primarily in Inuit Nunangat. Our homeland spans approximately 35% of Canada's land mass and approximately 75% to 80% of Canada's coastline. We have been instrumental in protecting Canada's sovereignty in the Canadian Arctic. We have signed modern treaties, or land claim agreements, with the Government of Canada, and we do not fall under the Indian Act.
We have had many colonial experiences that are consistent with the treatment of first nations and Métis. We have many things that are unique about our relationship with Canada and our relationship with the provinces and territories in the ongoing colonization and, now, in the ongoing reconciliation process in this country.
Inuit Tapiriit Kanatami welcomes Bill as a promising opportunity to close legislative and policy gaps that contribute to human rights violations against the Inuit, as well as for preventing discrimination and providing recourse and remedy for human rights violations experienced by our people.
ITK worked positively and constructively with the federal government on the development of Bill within a relatively short time frame for legislative development and within the parameters of the government's legislative mandate. Recognizing these limiting factors, Bill C-15 should be further strengthened by amending it to include provisions that enable the creation of an independent indigenous human rights commission. We liken this to having something that is very good and making it even better. The amendments that we have tabled are improvements upon our already positive support for Bill C-15, as we had already provided support for it upon first reading it.
Federal legislation is necessary to implement the UN declaration in Canada. While many articles of the UN declaration are already recognized as binding rules of customary international law, affirmation of the UN declaration in domestic statutes provides additional guidance on the legal effort of the rights affirmed by the UN declaration. In the absence of legislation, indigenous peoples are likely to continue to seek implementation of the UN declaration in courts and in administrative tribunals.
The UN declaration fills the gap that previously existed in the international human rights regime as an instrument that promotes and protects the distinct status and rights of indigenous peoples. The adoption of the UN declaration by the UN General Assembly curbed attempts by traditional international law to subsume indigenous peoples and entrench a colonial view of indigenous nations, peoples and communities. After 25 years of dialogue and negotiation between indigenous peoples and member states, the international community managed to finalize every article affirmed in the UN declaration.
Human rights experts associated with the UN recognized this gap in the human rights regime. Indigenous peoples worked to create political pressure to respond to the alarming and urgent human rights violations facing Inuit in the Arctic and indigenous peoples elsewhere in the world.
In this regard, it must be noted that Inuit representatives prioritized this work through the Inuit Circumpolar Council. Representatives of the Inuit Circumpolar Council worked, from 1982 until the UN declaration in 2007, as leaders in a global indigenous movement for the UN to consider and ultimately adopt the UN declaration. We were motivated by the need to develop a human rights framework that safeguards our people and the integrity of our communities.
It's important to note that the rights affirmed in the UN declaration are not new rights; rather, they are rights that have been recognized in domestic law in numerous countries across the globe and in international law. The outcome of the UN declaration provides the distinct cultural context of indigenous peoples, both as individuals and as collectives, with important economic, social, cultural, spiritual, gendered and political rights that are responsive to our distinct status and rights as indigenous peoples.
Bill , as you see before you, is very focused on two particular concepts: one, the alignment of laws and policies within this country with the UN declaration; and two, the creation of an action plan. We do hope we can focus this conversation and ensure that everyone who's reviewing it and everyone who considers it sees this as filling a gap in our human rights review, in the Canadian domestic human rights regime. Indigenous peoples' rights are human rights. This is a class of human rights that needs this particular legislation, and we do hope that Canadians accept the rights of indigenous peoples as human rights in this country.
Nakurmiik. Thank you.