INAN Committee Meeting
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Standing Committee on Indigenous and Northern Affairs
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EVIDENCE
Tuesday, April 20, 2021
[Recorded by Electronic Apparatus]
[English]
As we have quorum and are past the time, I accordingly call this meeting to order.
I start with the acknowledgement that in Ottawa we meet on the traditional unceded territory of the Algonquin people. All of us have land acknowledgements in our various places. In my case, it would be Anishinabe, Haudenosaunee and Chonnonton first nations.
Pursuant to the order of reference from the House of April 19, 2021, and the motion adopted on February 25, 2021, the committee is commencing its study—well, it has actually been under way for some time—of Bill C-15, an act respecting the United Nations Declaration on the Rights of Indigenous Peoples and to make related and consequential amendments to other acts.
I will clarify to members that the cited motion has the effect of merging our previous subject matter study with this new one under the order of reference.
To ensure an orderly meeting, best practices include just selecting language of choice. At the bottom of your screen is the globe. Touching the globe, you will find English, French or floor audio. Select the language that you prefer. If you're changing language as you speak, there's no need to change that selection. The technology, hopefully, will pick that up.
When speaking, make sure that your video is on, and speak slowly and clearly.
Pursuant to the motion adopted on March 9, 2021, I inform the committee that everyone has completed a technical pretest.
With us today is the Minister of Crown-Indigenous Relations, the Honourable Carolyn Bennett.
Minister David Lametti was to join us today. He has been unavoidably detained. His submission will be delivered by Minister Bennett.
Minister Bennett is accompanied by Ross Pattee, assistant deputy minister; Marla Israel, the director general; and Laurie Sargent, assistant deputy minister.
Thank you, all.
Minister Bennett, would you please begin with your statement?
Chair, before you go on, I have a point of order, just for a quick discussion if we could. Regarding Minister Lametti, his appearance was quite important, given that he is the sponsor of the bill.
Is there an opportunity to bring him back before this committee before we do clause-by-clause?
That would be my hope, but I put that to the clerk.
Mr. Clerk, how are we in terms of the ability to do that?
If the committee were to so decide, then I'd endeavour to make it happen. Our next meeting is clause-by-clause on Thursday, but I see no reason the minister couldn't also attend. It would be slightly irregular, given that for clause-by-clause witnesses don't normally make opening statements and are available to answer questions about the bill, but it definitely wouldn't be impossible, and the committee can choose to proceed how it sees fit.
I'd like to move a motion to call the justice minister to the committee at his earliest convenience, before we do clause-by-clause if possible. Potentially, that could mean before Thursday. We have a few more days. I don't know the availability of the room, but I'd like to see him appear before clause-by-clause.
Mr. Chair, first of all, apologies to the committee. I know Mr. Lametti was scheduled to be here. Regrettably, something has come up that's completely unavoidable and therefore he is not able to join us.
I worry about the timeline. Minister Bennett has had co-carriage of this file from the outset. I think she, as well as a number of officials who have been working on this issue for many years, will be well positioned to go through with this committee and to outline the issues members might have around Bill C-15.
That said, if the minister is available before the scheduled time for the clause-by-clause on Thursday, we can try to get him here, but I don't believe it's prudent for us to wait, because the number of witnesses we have today can ably address any issues the committee might have.
My intervention is going to be along the same lines as Gary's, but I would like to get to line-by-line on Thursday. I'm not in favour of extending it any further, because we want to get to royal assent. We don't want any more stalling for what indigenous people have waited far too long to get.
Mr. Vidal was just before me, but I'm happy to hear Ms. Bennett, and then we can discuss in the second hour future—
With all due respect to the witnesses, I'm sure they're very capable and very knowledgeable, but at the end of the day, this is the minister's bill. It is the minister who has spoken on this bill in the House on a number of occasions. It is the minister who has defended the time frames and the invoking of closure.
It's imperative that we hear the minister before the committee speaks to this legislation. I would support Mr. Schmale's motion on having the minister appear before we begin clause-by-clause consideration.
Let me suggest, then, as has been stated, that we go through the meeting today, and then determine whether we need more information.
Ms. Gazan, please go ahead.
Thank you, Chair.
It's highly disappointing that Minister Lametti is not here today. It brings a whole level of unnecessary discussion, when we don't have much time to waste. I would be happy with a written submission from the minister, in advance of the next committee meeting, whereby we can review and submit questions to the minister independently, and move toward clause-by-clause by Thursday.
Mr. Schmale, would you agree to put off the discussion on the motion until after we've heard witnesses today, and then, before the end of the meeting, make a decision on your motion?
With that, thanks everyone.
Minister Bennett, you have six minutes, and maybe a little more, because I understand you're going to read Mr. Lametti's written submission
Welcome, and please go ahead.
Thanks so much.
I will read Minister Lametti's opening remarks, and then I will move on to mine, Mr. Chair. That will take a bit more time, but it's really important that the committee hears what Minister Lametti had prepared to say to all of you.
[Translation]
Good morning. It is my pleasure to appear at this committee to discuss Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples.
[English]
He was joining you from the Department of Justice, which sits on the traditional territory of the Algonquin people.
[Translation]
Before I start to discuss the main points in the bill, I would like to acknowledge the untiring work of parliamentarians and Indigenous leaders to have the declaration implemented in Canada.
In particular, I would like to recognize the work of my former colleague Romeo Saganash, who introduced private member's Bill C-262 in a previous Parliament. That bill was examined and studied in detail.
It will take determined work and a sustained commitment by Parliament, by the government, by Indigenous peoples and by all Canadians if we are to give concrete form to the vision of self-determination, of governmental autonomy and of the harmonious relations between peoples that the declaration foresees. That is exactly the work that Bill C-15 commits us to do together.
[English]
The bill recognizes inherent rights and the right to recognition, observance and enforcement of treaties, agreements and other constructive arrangements. It also recognizes the role of the declaration as having application in Canadian law and as a source for interpreting Canadian law, including the Constitution. This is consistent with Canadian jurisprudence, which recognizes that, constitutionally, protected rights are not frozen in time. They are part of a living tree that grows and adapts to its surrounding context, including the development of new international norms, such as the declaration.
The legislation includes provisions emphasizing that measures to implement the declaration cannot be used to undermine aboriginal and treaty rights that are already constitutionally protected. To be clear, this provision does not seek to reinterpret or amend the rights in the declaration itself. It only confirms that this legislation cannot be used to derogate from the constitutional protection of section 35 rights, including treaty rights.
The legislation creates three specific obligations on the Government of Canada. The first requires the federal government to take all measures necessary to ensure that the laws of Canada are consistent with the declaration in consultation and co-operation with indigenous peoples.
The second obligation requires developing an action plan in consultation and co-operation with indigenous peoples. The action plan would address injustices and combat prejudice while promoting mutual respect and understanding with an underpinning in human rights.
The third obligation contained in Bill C-15 is a requirement to prepare annual reports in consultation and co-operation with indigenous peoples. This would provide transparency on the measures taken to ensure that the laws of Canada are consistent with the declaration and the action plan.
[Translation]
To follow this path, we must work in collaboration to determine the way in which the standards and rights set out in the declaration will be put into practice. This includes the main aspects of the declaration such as free, prior and informed consent
[English]
Free, prior and informed consent is a manifestation of the right to self-determination. It is about providing the opportunity for clear, effective and meaningful participation of indigenous peoples in decisions that directly affect them. Achieving consent should be the goal of any good faith consultation or collaboration process. To be clear, the declaration does not confer a veto or require unanimity in these types of decisions. If consent cannot be secured, the facts and law applicable to the specific circumstances will determine the path forward.
Bill C-15 will not change Canada's existing duty to consult indigenous groups or other consultation and participation requirements set out in legislation like the Impact Assessment Act. What it will do is encourage ongoing work to build on these types of arrangements and approaches.
I would like to acknowledge that we have heard several potential proposed amendments and want to assure members that we are taking these suggestions very seriously. We welcome your recommendations.
[Translation]
Bill C-15 demonstrates a genuine commitment to champion reconciliation and to improve relations with Indigenous peoples. In so doing, we will build a better Canada for all current and future generations of Indigenous peoples and Canadians alike.
Thank you.
[English]
Mr. Chair, do you want me to go on with my own remarks?
[Translation]
Okay, thank you.
I am speaking to you today from the traditional territory of the Mississaugas of the Credit First Nation. I wish to honour the waters they paddled and their moccasins which walked these lands.
It is my pleasure to appear at this committee to discuss Bill C-15. I am joined today by two officials from the Implementation Sector: Ross Pattee, Assistant Deputy Minister, and Marla Israel, Director General of the Policy, Planning and Coordination Branch.
I would also like to take this opportunity to recognize the leadership of former member of Parliament Romeo Saganash on developing the United Nations Declaration on the Rights of Indigenous Peoples (the “Declaration”) and on legislating a framework to implement it here in Canada and I thank him for Bill C-262, which served as the foundation for Bill C-15.
[English]
The declaration is of critical importance to indigenous peoples across Canada, including the indigenous leaders who participated directly in its development.
The declaration is the result of decades of tireless effort, negotiations and sustained advocacy within the United Nations system, including by inspiring indigenous leaders like Dr. Wilton Littlechild, who you heard from last week. As Dr. Littlechild recently told me, all together, C-15 is a reconciliation call for justice and respect through implementation of solutions-based international treaties.
I believe that implementing the declaration here in Canada is essential to advancing reconciliation with indigenous peoples. This has been made clear by both the Truth and Reconciliation Commission, after six years of hearings, and the National Inquiry into Missing and Murdered Indigenous Women and Girls, after three years of listening to families and survivors.
The TRC said that the declaration charts a path for reconciliation to flourish in 21st century Canada. The inquiry's calls for justice also call on governments to immediately implement and fully comply with the declaration.
Prior to the bill's introduction, 33 bilateral sessions took place with AFN, ITK and MNC. In addition, more than 450 people participated in 28 regional engagement sessions, providing feedback and advice on potential enhancements to the consultation draft. Provincial and territorial governments, experts and industry stakeholders also informed the development of the bill.
While we acknowledge that some would have preferred a longer engagement, it was inclusive and meaningful. The current bill reflects the content requested by many indigenous partners.
Extensive meetings were also held with indigenous partners and other stakeholders after its introduction, to explain the bill's content and work on further enhancements. As Minister Lametti has noted, engagement post introduction informed some further amendments, which the government will be supporting.
Co-development of the action plan will be a further opportunity to work in close partnership on implementation.
We have already begun preliminary discussions with indigenous partners on the design of that process. Yesterday's budget 2021 proposes to provide $31.5 million over two years to support its co-development.
Recognizing and respecting indigenous rights mean that indigenous peoples are at the table for decisions that impact their rights. In many cases, it means that economic development and stronger economic outcomes will be advanced with indigenous peoples as partners.
The declaration is broader than economic development. I'm so grateful for my conversation with Mary Ellen Turpel-Lafond, who you also heard from last week, on her findings about racism in health care and her report, “In Plain Sight”. She was very clear about article 24 of the declaration, which states:
Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health. States shall take the necessary steps with a view to achieving progressively the full realization of this right.
This will be very important in guiding the future legislation on indigenous health.
I also remember how important it was, during the summit on child welfare, to underline Article 7 of the declaration, which details the collective and individual rights to live free from violence, including “forcibly removing children”.
The declaration allows us all to develop a clear path so everyone can work together as partners with a shared stake in Canada's future.
As I said before, implementing the declaration is nothing to be frightened of. What is needed is fundamental and foundational change. It's about shedding our colonial past and writing the next chapter together, as partners with indigenous peoples.
It has been more than 13 years since the declaration was adopted by the General Assembly. I urge all members to support this fundamental and necessary change and support this bill.
Thank you. Meegwetch. Nakurmiik. Marsi.
Thanks, Minister.
We're going to a six-minute round of questioning.
I have Mr. Schmale, Mr. Battiste, Madame Gill and Ms. Gazan.
Jamie, please go ahead.
Thank you very much, Mr. Chair.
Good morning, Minister. Thank you very much for your words.
Minister, an infrastructure project such as the Trans Mountain expansion pipeline involved consultation with close to 120 indigenous groups. While the majority of these groups wanted to see the project proceed, four first nations opposed the government's approval of the project and challenged it all the way to the Supreme Court.
In the July 2020 Supreme Court decision, it was ruled that the federal government's approval of the project would not be overturned and that the project could proceed. The government had fulfilled its duty to consult, but some of these nations continued to fight it and vowed to do so, not recognizing the decision of the court.
Minister, can you confirm that with the passage of Bill C-15, the federal government and provincial governments will retain their authority to make final decisions in the public interest on major projects, even where not all indigenous rights holders agree?
That's a great question, Jamie.
It really is important for people to understand that, even with Bill C-69, the issue is “nothing about us without us”. This means that, for good projects to go forward, indigenous people should be at the table at the original design of the project. This is happening in the north all the time. Inuit are at the table to determine.... Good projects go forward; mediocre projects get made better; bad projects get rejected. That's known right from the beginning.
We're in a transition now where there are a number of projects that may have been seen as controversial, but this is what will provide the clarity, going forward, as to how it works.
I think you've also underlined an important point. Consensus is not unanimity. There are going to be times when certain people object, but I think the courts are holding up the duty to consult and accommodate, and this will be the way forward. I think that this is....
The work I'm doing on self-determination, nation rebuilding and trying to make sure that, like in the north, there's a voice for a nation that is consistent with the will of that community and that we are able to go forward with a true government-to-government, nation-to-nation approach, in a true partnership going forward.
Minister, will the framework and principles established over two and a half decades of jurisprudence on section 35 rights be thrown out? If not, will you make this clear in the legislation?
Yes. I think even in Minister Lametti's remarks, it's very clear that there is nothing in this bill that will detract from section 35 rights. Section 35 rights are the Constitution of this country, and we will go forward, but I think there is a view that there will be various ways of enhancing the rights going forward. Nothing in this bill would take away the rights that exist in section 35.
Minister, the First Nations LNG Alliance, the Indigenous Resource Network and the Indian Resource Council have stated:
The uncertainty in the legislation makes it likely that it will be used as a legal strategy to delay and stymie resource development projects by groups that oppose extractive and other resource projects under any circumstances, even those where Indigenous nations are overwhelmingly in favour.
They went on to say:
We want to make sure C-15 protects Indigenous rights, as self-determining nations, to make decisions about our own resources.
Right now I don't think it's clear what changes on the day Bill C-15 passes, but we know there is a range of views and expectations on this legislation, including among indigenous groups. Some are saying it lacks clarity and that it will negatively impact the rights and ability of indigenous groups to form business partnerships and pursue economic independence.
Minister, again, concerning the definition of free, prior and informed consent in Bill C-15, are you concerned that by not providing a definition, this could leave it up to interpretation in the courts and ultimately delay the process of reconciliation, including the Bill C-15 legislation or what comes next after it?
It's been very clear that this free, prior and informed consent must not be interpreted as a veto. In some ways it's easier to define what it's not than to insist, like in Bill C-69, that indigenous people are at the table at the first idea of a project. What that means is it's an ideal opportunity to form those partnerships for indigenous people to have the benefit of the kinds of economic opportunities that would come out of building a project together, or in the seizing of those kinds of opportunities.
I think it's the opposite, that without this understanding that indigenous people will be there at the table, unfortunately, some projects went forward without talking to indigenous people, and they ended up in court for a very long time, or with blockades, or those kinds of things.
This gives you the clarity to say “nothing about us without us”.
Then we will find an opportunity for the partnership. There are so many partnerships, whether it's the James Bay Cree.... There are just so many examples of how this works well for indigenous communities.
I'm sorry. We're done, Jamie. We're at six and a half minutes.
We'll go to Mr. Battiste for six minutes.
Thank you, Mr. Chair.
I would also like to start off by thanking Minister Bennett for her work on Bill C-15 and her tremendous work in terms of working with a number of organizations to get their support on Bill C-15.
I was really pleased to hear about the 33 bilateral sessions that were done with the Assembly of First Nations, the Métis National Council and Inuit Tapiriit Kanatami to help co-develop this bill. This is on top of the 27 years at the United Nations; the UN working group was the first working group to have non-state actors at the same table during the drafting stages, where thousands of indigenous voices contributed to what we have within UNDRIP.
Also, I'm really pleased to see that within the budget there's $31.5 million allocated over two years to ensuring co-development of an action plan on UNDRIP. To me, it really seems that the work on reconciliation with Bill C-15 is just getting started.
I wanted to speak a bit about some of the fears that are out there that some people addressed through section 35 about the possible impact of aboriginal and treaty rights. I believe there's a strong derogation clause, but I'm wondering if you could take some time to speak to section 35 rights and how as a government we're ensuring that we protect these aboriginal and treaty rights within our government and within Bill C-15.
Thank you so much. Thank you for reminding us of the decades of work that have gone into this. This week at the UN permanent forum, for us to be able to thank Wilton Littlechild for all his work.... But there are so many other Canadians and indigenous representatives from Canada, like your family, Jaime. You've lived this your whole live. I don't think we could have a stronger advocate. Thank you for all you do.
Also, in talking about the kind of engagement, I just want to say that we want meaningful engagement, and that means that the excellent Bill C-262 that Romeo Saganash brought forward was evergreened—because the declaration is not—to include two-spirited peoples and to make sure that the definition of the diversity within indigenous communities is not only in the preamble but also in the body of the bill.
This is an exciting time and it helps that the reference to the UN declaration is now in eight of our bills in Canada, including Bill C-91 and Bill C-92. The intent and the commitments in the UN declaration are now part of Canadian law. This will serve to help people understand better what section 35 rights mean, and that indigenous rights and treaty rights are not debatable. They exist, and they will continue to flourish with the understanding of all Canadians.
Thank you, Minister.
We heard from MNC's president, David Chartrand, who said that Bill C-15 is, as he called it, a “blueprint for clarity”. I know that Assembly of First Nations National Chief Perry Bellegarde has talked about the need to see this get to royal assent. I'm wondering if you could elaborate a bit on the bilateral sessions and how our government worked with the constitutional voices in Canada to ensure that we were hearing from them as well.
Chair, I could maybe offer a bit of completion of that.
We've had over 70 different meetings and a number of experts from across the country engaged on multiple fronts, including, as the minister noted, Mary Ellen Turpel-Lafond and many others. It includes conferences and sessions that we've run. One of the more interesting ones was with a large number of indigenous law students from across the country.
Expertise, I think, is defined in many ways. There are those who have spent many years and a long time in the books, but there are those whose lives have been changed by their passion to change this for future generations. They have been involved too.
Thank you very much for that.
Hopefully, we can get the minister back for the next line of questioning.
That's all for me, Chair.
Thanks. I'm sure we'll be able to solve the technical issue.
[Translation]
Mrs. Gill, the floor is yours for six minutes.
Thank you, Mr. Chair.
So I will ask my questions anyway, even if Minister Bennett is not back with us.
First of all, I must thank her for being here. I also want to emphasize that I would like Minister Lametti to have taken part in our meeting.
As a Bloc Québécois MP, I would like her, as a lawmaker, to explain her intention as to the presumed or real effects of the United Nations Declaration on the Rights Indigenous Peoples on the jurisdictions of Quebec and the provinces.
I would ask Minister Bennett if she can reassure us. In fact, since the beginning of the study, a lot of myths and assumptions, which may or may not be accurate, have been spread as to the consequences of passing this bill.
I would like to hear what she has to say about passing this bill. I would also like her to reassure us that it will not mean federal government interference into the jurisdictions of Quebec and the provinces.
Given that the Minister has only just joined us again, she may not have heard the question, Mr. Chair, I will start the answer and the Minister will perhaps pick up on the question as I begin to answer it.
[English]
[Translation]
This is of course federal legislation that deals with the responsibilities of the federal government. If the declaration has any impact on the provinces and territories, it is independent of the federal government's responsibilities.
Perhaps Ms. Sargent, my colleague from the Department of Justice, may have something to add. But the act deals with the responsibilities and the activities of the federal government
I wonder whether Madam Minister would have preferred to answer that question. Although your answer was very clear, Mr. Quan-Watson, I would not like to deprive her of that pleasure, if she wishes.
Whatever the case, some other fears have occurred to me, and I would like you to clarify some points, Madam Minister.
Earlier, you brought up the distinction between free, prior and informed consent and the right of veto. That really is an idea that we hear regularly. Could you explain the exact distinction between the right of veto and free, prior and informed consent?
In addition, could you tell us more about section 35 of the Constitution as it relates to the declaration? The two are often linked. Some people wonder why we are adopting it because we already have section 35 and there is really no difference between the two. Others don't want to adopt it because there is a difference.
So we hear that there is a difference and that there is not, at the same time.
Can you clarify the matter, please?
Thank you very much for your question.
As Mr. Quan-Watson said, Bill C-15applies only to federal legislation. For example, British Columbia establishes its own laws and can adopt the declaration. It's very important for all provinces and territories to fully understand that need.
Section 35 of the Constitution, however, applies to our country in its entirety.
Madam Minister, concerns have also been raised about resource sharing. We talked about it indirectly when my colleagues were asking questions.
Will the sharing of resources have a negative or a positive impact on the jurisdictions of the provinces and of Quebec?
I think the example of the James Bay Cree perfectly illustrates the nature of a real partnership. It is possible for those Indigenous Indigenous communities to be at the table from the first stages of a potential project and to maintain a true relationship with the industries and companies proposing the projects.
So the distribution of resources is also within the jurisdiction of the governments of Quebec and the provinces.
Yes, it's in the Constitution. The lands are really in provincial jurisdiction, but I feel that it is possible to share the natural resources. I am thinking of the Indigenous economy of the future and about clear justice for Indigenous peoples.
[English]
Thank you so much, Chair. I'd also like to thank the minister for joining us today.
Minister Bennett, year after year, records show that your department spends more than $100 million annually fighting indigenous rights and status. My question is this. During the pandemic, with this new budget, how much have you budgeted to fight indigenous peoples in courts? You talk about reconciliation, but I would argue that fighting against fundamental indigenous human rights is not an act of reconciliation.
We know that we have to do better. We also know that certain rights affect other rights. Within indigenous communities, whether it's survivors of residential schools or children in the child welfare system, our job is to make sure we go forward with fairness and justice. Unfortunately, when we are taking part—
I'll give you a couple of examples. One is the Canadian Human Rights Tribunal ruling to immediately stop racially discriminating against first nations kids. Another is the fact that your department continues to fight St. Anne's residential school survivors, sixties scoop survivors, in court.
With due respect, my job is to get out of court on so many of these aspects. Whether it's specific claims, whether it's comprehensive claims or whether it's all of these—childhood litigation, for example—we have settled from Anderson to the sixties scoop. We just keep settling these claims. There are some that are a bit more difficult than others, but we want to do right, and right past wrongs.
Minister, with all due respect, I think the survivors of St. Anne's residential school would say otherwise, or all the kids who continue to be racially discriminated against, with your government indicating that you will not pay what's been ordered by the Canadian Human Rights Tribunal ruling. I say this, Minister Bennett, because you have the power to immediately implement article 22 of UNDRIP in Bill C-15, which states the following:
Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities in the implementation of this Declaration.
Knowing all of this, why do you choose instead to keep fighting first nations children, for example, in court, and why have you failed to implement a national action plan to address the epidemic levels of violence and murder of indigenous women and girls and two-spirit persons across this country? I know you had a budget announcement. However, the report was released on June 3, 2019. There's no action. Where is the action plan?
I thank you for that, but I also want to say that Minister Miller has been very clear. The children will be compensated, and there will be a fair compensation that meets the needs of those who were in care for their whole adolescence and those who were in care for a very short time. This has to be done properly, so that people aren't revictimized.
I'm very optimistic about the 100 women and two-spirited people working toward a national action plan. I think I was a bit optimistic two years ago that we would be able to get that done in a year. I am just so proud that we said we would need to get it right, and with the partners we have working on it, it is so impressive, and I think they—
Minister, I think we need to move on here, but I have to say, I'm not very proud of this current government and the fact that on their watch women and girls—and children—continue to die because of this incremental approach to justice that your government has shown.
I want to move on specifically to the bill. There have been several recommendations that have been brought forth to the committee in testimony and written submissions.
For example, the first is deleting paragraph 6 from the preamble.
The second is adding a subclause 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.”
The third is another amendment, adding a subclause 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.”
Is your government open to amending Bill C-15 to honour what has been called for by nations across this country, to include the living tree doctrine?
I just wanted to go back to say that I find it hard to hear you say there's been no action on missing and murdered..., when we've been building, really since 2015, on the determinants, the causes and the cause of the causes, with $2.2 billion in yesterday's budget.
I think this is what we have to do to stop the tragedy. These are concrete actions to stop the tragedy.
Minister, that wasn't my question, but I think you should tell the three women and young girls who lost their lives in my riding since the pandemic that your government is doing enough. I would argue it is not.
I think that's the end of my time.
Thank you, Mr. Chair; and thank you, Minister, for being here today.
Before I get into my own questions, I want to follow up on where my colleague, Mr. Schmale, was ending his round with you, in that whole discussion around FPIC and a veto. We've had many witnesses tell us in the last several meetings that free, prior and informed consent does not mean a veto, and you confirmed that again today.
Why do you not actually just put that in the legislation? Would the government be opposed to an amendment that would include that in the legislation?
I know Minister Lametti and the government are looking at all the potential amendments being put forward, including what Ms. Gazan said. I think most people feel that free, prior and informed consent needs to stand on its own, as it does in the declaration.
There's nothing about free, prior and informed consent in the legislation itself. It is embracing the declaration as it is, and I think what has formed not only the preamble but the body of the bill is not going to frighten people, because we want to just be able to go forward.
However, the fact of the matter is, from the number of people I've talked to, especially indigenous business organizations that make an income in the natural resource sector, those dividends—those proceeds from that sector—go back into their communities to address social issues, to reduce poverty, and to recreation, housing and suicide prevention. Those people who have a mandate to reduce poverty in first nations in Canada are the ones who are raising the concern about the lack of clarity or the lack of certainty around that definition.
I push for clarity on behalf of those folks who are trying to do tremendous work in the first nations communities in my riding and across the country. I'm going to come back again to that question: Would you personally support the concept of just bringing that clarity by actually saying in the legislation that this is not a veto?
Where we know we need to go forward is that in the duty to consult, the duty to accommodate, that is a broad approach without definition, and again, that the norms for that continue to evolve. I think there is a complete consensus that this is not a veto. We are obviously going to consider all the possible amendments, but I worry about that one.
Thank you.
I would come back and say, if all these people say it's not a veto, let's just put it there and then we have clarity. Let me move on to something different, though.
Before the pandemic began, in the early part of 2020, the front pages in Canada were very much centred around who has the authority to withhold or provide consent in linear projects, and obviously you're right in the middle of that.
My follow-up question to you would be, would it not seem appropriate to allow some time and space for indigenous communities and their leaders to find the answer to the question as to who has the authority—who has the ability to speak on behalf of their people—before we jump into some of these things?
I get the importance of this. I support so much of what's in this legislation, but with the lack of consensus even within the first nations communities, does this lead to some challenges for us down the road—challenges that you were walking through, literally, personally, in the early part of 2020?
It really speaks to the urgency of our needing to invest in nation rebuilding and being able to decolonize and support nations rebuilding themselves so they can take decisions as a group. However, the decision is taken based on the wishes of the community.
These aren't taken by any particular group. Whether it's a treaty organization where they take a decision as a treaty governance, or how we move forward.... It's exciting to see some of these communities really building a hybrid model between traditional and hereditary leadership, and the elected leadership. It's just amazing to watch because, again, the UN declaration and its push for self-determination really is inspiring in terms of getting that hard work done.
Thank you very much, and I come to you today from the unceded territory of the Mi’kma’ki.
Thank you, Minister. It's great to see you again, and thank you for all your hard work. There's so much to do on this file, and I just want to say I think you're doing an amazing job.
I was really glad you made a point in your notes earlier today, when you said it's very important that UNDRIP deals with more than consultation on resource development projects with impacted indigenous communities. This was a very good point, because last week we heard here on the committee from Beth Symes on behalf of the Pauktuutit, who also made this point. She asked us to look at this through the lens of indigenous women, and specifically articles 21 and 24 of UNDRIP, which deal with the promise of better social conditions for indigenous peoples.
Could you please speak to us more broadly on the nature of the principles in UNDRIP, and how important that is as a framework for everything from health care to family services to other issues of social well-being for indigenous people across Canada?
Thank you.
It speaks to what decolonizing means. People were saying.... I think in the Hollow Water study it said that what was once seen as healing is now decolonization therapy. It means that this is about leadership. This is about, as settlers, having the humility that was missing when Europeans arrived to think their ways were better.
What I see in article 21 is that it's about first nations, Inuit and Métis developing their own health and social programs, education, vocational training and retraining. All of that needs to be indigenous led. We certainly have seen that, Lenore, during COVID. When the indigenous leadership know exactly what needs to be done, and the government is there to support their priorities and support their way forward, we know we get much better results, as we've seen even during the third wave.
It is about humility and being able to support a way forward designed by indigenous professionals, but also their political leadership.
Thank you. I would have to agree as well, coming from Australia, where the aboriginal people, the first peoples, were put in jail for burning off their land at a certain time of year. The colonials did not understand why they were doing that, and now, years later, they realize they were doing it because it helps to prevent major forest fires. They knew 60,000 years ago what needed to be done to the land to keep it healthy. If we had only listened to more of them all around the world, we wouldn't be in as bad a place with climate change, or in any other way.
Minister, your remarks also note that in addition to the specific Truth and Reconciliation Commission calls to action 43 and 44, which call on governments to fully adopt and implement the declaration and develop an action plan to achieve those goals, the declaration is referenced through the calls to action. It's also referenced in the final report of the national inquiry into missing and murdered indigenous women and girls.
Could you please expand on why you think the Truth and Reconciliation Commission and the national inquiry both have emphasized the declaration as such a key part of reconciliation? I would like to hear some of your own views on why this international document is so essential to advancing reconciliation here in Canada.
It is so important. It is about self-determination. Both the truth and reconciliation commissioners and the commissioners for the national inquiry understood that it is with that recognition of rights, respect, co-operation and partnership that we have to move forward. That's really what the UN declaration does. It says that this is the right to self-determination, to make your own decisions and to be able to design the programs as you see fit. The health, education and economic outcomes will then soar, as we know.
This is a really important time in the history of Canada. We get to turn this around, from paternalism to true partnership.
Thanks, Minister.
We're going to take Ms. Gill and Ms. Gazan, for two and a half minutes each, and then conclude.
[Translation]
Mrs. Gill, you have the floor.
Thank you, Mr. Chair.
Thank you for being so kind as to stay with us, Madam Minister.
I would like to finish my previous question about free, prior and informed consent, or FPIC. You said that this concept could appear in the act without a corresponding definition.
So I am asking you for two explanations. Why could the concept not be defined in the act? Second, how can we allay the fears that FPIC could become a right of veto?
Thank you for your question.
I feel that we have a clear consensus that it is not a veto. As FPIC is explained in the declaration, it is not necessary to explain it again in the bill.
It's difficult to reach a consensus with our partners at the moment. It is very difficult for us to insist that a definition be accepted without a consensus from the Indigenous peoples.
I have a question for you on another issue that was brought up in a range of testimony, the issue of women.
Did the bill get a GBA+, a gender-based analysis plus?
Thank you very much.
As some women's groups want that question to be included in the preamble, it would be helpful for our work if you could send that analysis to the committee.
Yes. In addition, the commitment of young indigenous lawyers, and the inclusion of two-spirited people and indigenous diversity, represent an advance in concepts of gender, in my opinion.
[English]
Thank you, Mr. Chair.
Going back to amendments that have been recommended to our committee through testimony and written submissions, I am asking if your government is willing to make the following amendments.
The first is deleting paragraph 6 of the preamble.
The second is adding a subclause 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.”
The third is adding a subclause 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.”
Thank you for the hard work on the possible amendments.
Obviously, everything is being considered, but I think we will want to make sure that, again, with our partners and what was in the consultation document, we will need to make our best efforts in achieving a consensus.
I ask that because I know particularly the latter two amendments I proposed speak to the importance of recognizing and respecting the living tree doctrine, an amendment that was put forward by former member of Parliament Romeo Saganash, as well as the Assembly of First Nations. It's important that this government respect those amendments, and I'm hoping that we see those amendments as we go through clause-by-clause of the bill.
I would just say that as we go to work on the action plan—and as you know, the action plan's already begun its work, and places like Yukon are already going to work on this—that evergreening of the bill is going to be really important in terms of the living tree, the living document, as it goes forward. Whether it's in the bill or whether it's part of the action plan, those are the deliberations that Minister Lametti is doing now.
Thanks, Ms. Gazan.
Minister Bennett, thanks for delaying your other appearance for us.
We'll suspend very momentarily and retain all of our witnesses, as well as adding two more. The committee is suspended.
Once again, thank you to the minister.
I call this meeting back to order.
Once again, we have the department officials ready to answer the questions, as introduced earlier.
Let us go now to the first round of questions. I have to find my right order. We're at Mr. Viersen.
Mr. Viersen, please go ahead for six minutes.
Thank you, Mr. Chair.
I want to thank the witnesses for being here today as well.
To the justice department folks, I'm trying to figure out paragraph 4(a), where it says that UNDRIP would have “application in Canadian law”. Are there any other UN declarations...? I'm thinking of the UN Declaration on the Rights of the Child or the Palermo protocol, or any of these other instruments that I use from time to time. Are there any others where it's explicitly stated that they have application in Canadian law? Many of them we use to determine and draft our laws here in Canada. I've done a Google search and I can't find any, but is there any other instance where we've legislated a UN declaration with application in Canadian law?
Ms. Sargent.
The wording that is found in this bill is unique relative to others. That said, there are examples. I think of the Immigration and Refugee Protection Act, which speaks to the role of international human rights instruments in interpreting that law, so there are some examples. The way the government reads paragraph 4(a) is really a reflection of the state of the law as the courts have told us it exists, which is that declarations such as the United Nations Declaration on the Rights of Indigenous Peoples can be used to inform the interpretation of legislation and of the Constitution, and therefore have application in Canadian law.
That doesn't change anything then. When you're saying that 4(a) doesn't change the workings on the ground, whether the Palermo protocol or the rights of the child also have application in Canadian law, you can come to court with that as a document and say, hey, this child's rights are being violated because of the UN declaration. Is that the case?
The way you've explained it is appropriate in the sense that claimants can bring international instruments before courts already and explain how they relate to either their legal arguments under the charter or under other legislation, and this provision really is a recognition of that same point. All that said, there is value to recognizing the role this declaration can play, given its importance and the recognition that it has in international fora and by indigenous peoples as well as governments in relation to interpreting and applying Canadian law.
Given that paragraph 4(a) is kind of unique and it's the first time we're using it, will articles of UNDRIP be actionable in Canadian courts?
That is something we already see. In other words, indigenous claimants are invoking the declaration when they view it as a helpful supplement to their arguments under Canadian law.
We wouldn't see this provision necessarily changing or having a significant impact in that regard, but it does, of course, make it clear that the federal government needs to be mindful of the declaration when it approaches its own interpretations of federal legislation and the Constitution, among others.
It really signals, I think, the importance that the government places on the declaration as a source of interpretation for legislation in Canada.
With the trafficking in persons laws that we have brought in this country, we have used the Palermo protocol. Would you say the Palermo protocol has the same actionable character in Canadian law as UNDRIP at this point, or does paragraph 4(a) change that?
I'm not an expert in the Palermo protocol and exactly how it may be used in that context, but generally speaking, the federal government, when it moves to implement international treaties in Canadian law, can take a number of different approaches. In this case, what we see is the government really taking—when I say the government, I also reflect Bill C-262 and the approach that it took—an approach of recognizing the role of the declaration as an interpretive instrument relevant to interpreting our laws.
I think we heard other witnesses before the committee say this as well. It's not an attempt to take the declaration and make it a federal law, which is sometimes the way international instruments are integrated into Canadian law. That's not the case here.
We have heard numerous times the assertion that this would create uncertainty. What is the meaning of free, prior and informed consent?
I understand that we're not the first jurisdiction to implement UNDRIP or to attempt in some way to incorporate the provisions of UNDRIP in our domestic law.
Can you tell us what other jurisdictions' experiences have been with respect to implementing UNDRIP and how they have interpreted free, prior and informed consent? I guess that includes British Columbia, if you're unaware as to what other jurisdictions have done internationally.
I will perhaps start with the B.C. example, which, as you say, is the one most familiar to us.
Again, the legislation in relation to the UN declaration does not define free, prior and informed consent. The approach taken was very much to articulate during legislative procedure as to what the government's understanding of that concept was, and the importance, of course, of aligning, in that case B.C.'s laws, with free, prior and informed consent as a guidepost and something that will be implemented in a number of different contexts—Minister Bennett spoke to that as well—across social and economic resources and so on.
In terms of other countries' experience, as I understand it, there are not many other countries that have specifically legislated the UN declaration's implementation, but there are several in Latin America—I believe Colombia and elsewhere—that have looked to the declaration to inform their own constitutions. Of course, each country is unique and will take a different approach. Article 38 of the declaration really speaks to that: that it's for each country to take its own approach in implementing the declaration in a manner that reflects its traditions, its indigenous peoples, its Constitution and its laws.
Do you know if there have been any cases in British Columbia so far, since they enacted their law related to indigenous and aboriginal rights? Have there been any attempts by British Columbia courts to interpret that provision?
I will ask my colleagues from Justice, who are on the line. They might want to provide a further response to this.
My understanding is that since that legislation is quite recent, there are not many cases where it has been used as a basis for decision yet. I'm sure it has been invoked in a couple of cases.
I'll ask my colleague Koren Marriott if there's anything she'd like to add to that response.
We know it has been raised in a few cases, together with other arguments about the declaration, but I'm not aware of any decisions yet where the court has addressed the bill directly.
Let me totally change tack.
Our government adopted the principles of UNDRIP back in 2015. My understanding is that the government has been working on implementing those principles since 2015.
Can you tell us what the government has been doing to implement the principles of UNDRIP since 2015?
I will be pleased to provide an initial response and then see if my colleague Ross Pattee from Crown-Indigenous Relations might wish to add, because it really has been a whole-of-government effort to implement and reflect the principles of the UN declaration across the federal system.
Minister Bennett mentioned that there are already many laws that reflect the declaration itself in their language, their preambles or their purpose clauses. We have Bill C-92, the act respecting first nations, Inuit and Métis children, youth and families; the Indigenous Languages Act passed in the previous session; and the preamble to Bill C-69, the impact assessment legislation. There are many examples in legislation itself.
Then, of course, the declaration has been informing a lot of the work that Crown-Indigenous Relations is doing in a number of different areas, including in the recognition of rights tables and the negotiations there.
With the chair's permission, I could ask if Ross might also wish to add anything.
Unfortunately it would have to be done in five seconds. Maybe it will come up again, but thank you.
[Translation]
The floor is yours, Mrs. Gill.
Thank you, Mr. Chair.
I would like to go deeper into the issue of possible federal government interference in areas of jurisdiction that belong to Quebec and to the provinces.
Of course, Minister Bennett clearly dismissed that possibility out of hand. However, communication with the public is often necessary in order to clarify matters and make sure that people are not living in anxiety. I would therefore like to know how and when, or actually whether, the government has collaborated to properly communicate the points in Bill C-15, including their effect in Quebec and in the provinces?
Yes, a number of discussions have taken place with the provinces and territories, including two with provincial and territorial deputy ministers and the federal government in attendance. There were also two ministerial meetings, during which provincial and territorial officials were able to ask questions and make known any concerns about Bill C-15.
I will complete Minister Bennett's response by drawing your attention to a passage from the preamble of Bill C-15, which mentions the role of the provinces and territories, and in which the Government of Canada acknowledges:
that provincial, territorial and municipal governments each have the ability to establish their own approaches to contributing to the implementation of the Declaration by taking various measures that fall within their authority.
That passage reflects really well the bill's recognition of shared jurisdictions in Canada.
Thank you Ms. Sargent.
The Minister did not have the time to talk about section 35 and section 15. As I pointed out, those who are not in favour of Bill C-15 will tell us that it adds nothing to section 35 and they want none of it.
What would you say to those people?
Perhaps we have to take a little step back. We have to understand that, as the purpose of the act states, the objective is to provide a framework for implementing the declaration. The federal government has committed to work in partnership with Indigenous peoples to make sure that the declaration is implemented in every aspect of federal law and federal policies.
However, some points, including free, prior and informed consent, will require much more discussion. The bill requires Parliament to do that. In addition, as the principles governing the relationship of the Government of Canada with Indigenous peoples already emphasizes, free, prior and informed consent not only requires the legal obligation to consult but also goes beyond that obligation. In fact, it is an invitation to find creative and constructive ways to work in conjunction with Indigenous people in all areas where the principle applies
I have mentioned four or five issues that have raised fears. To conclude, can you tell us about the fears that people might have about the bill, whether they are from Indigenous peoples or from the non-native population?
As I mentioned previously, the legislation applies a framework. It also involves a commitment from the federal government to continue its discussions and to develop an action plan.
An important conversation on matters such as free, prior and informed consent will have to take place, including how, specifically, it is applied in a number of contexts.
There must also be an emphasis on the fight against discrimination and racism, and on the importance of all the work that will have to be done collaboratively.
[English]
Thank you so much, Chair.
I guess I'll ask this of Madam Sargent.
Concerns have been raised about the lack of consultation with individual indigenous rights holders. Moving forward, certainly in the action plan, how does your department plan to consult with indigenous people and peoples on the ground?
It is certainly something we are mindful of and reflecting on in light of the experience leading up to the introduction of Bill C-15. We recognized that the legislation had undergone a great deal of engagement already and that there was some urgency to bringing it forward. Therefore, the engagement process was shorter than many would have liked.
That said, moving forward, with respect to the action plan, we are absolutely wanting to engage more broadly. On that, I'd be pleased to turn it over to my colleague, Ross Pattee, who's also thinking about this through the lens of the work that Crown-Indigenous Relations does in engaging with indigenous peoples. We see it as a joint project going forward.
With the permission of the chair, I'd like to pass the question over to Ross for some further response.
Of course, we are already engaged right now in moving forward. As you heard from the minister, the budget yesterday allotted over $31 million for consultation and engagement with a variety of people who have an interest in this legislation as it moves forward.
Our plan is quite comprehensive and extensive, and it will involve all indigenous partners, rights holders, industry and individual indigenous rights. It's going to be very important that we complete that process so that we come up with the best action plan possible.
You mentioned the $31 million. Have any decisions been made about how that funding will be allocated? Who's going to control that allocation of funding for consultations?
I only learned that it was approved and put forward at about 4:30 yesterday, so the answer to your question is that no decisions have been made yet.
What I can tell you, based on my previous answer, is that it's going to be important that we use that money effectively to ensure that everyone's voice is heard and that we all work together on a collaborative action plan as we move forward.
Thank you so much.
I have another question. There have been questions raised about the three-year duration for the development of the action plan. I wonder why your department decided that the three-year time frame was necessary to develop an action plan when we've been, as we've heard around the committee table, discussing the rights enshrined in the declaration for the last three decades. Why did you feel it was necessary to have those three years?
I'll take that answer also.
I want to remind folks that it says that the plan needs to be developed within three years, so it's up to three years. I also understand that there's a proposal to potentially look at shortening that time frame.
The reason we put the possibility of that time frame in is that we need to work in consultation. This needs to be a consultative engagement plan. That's going to take some time to do, and it's going to take some time to do effectively.
If we're given two years to do that, we will do it in two years for sure, but I want to just reiterate that it's about making sure we get the right voices heard to get the plan as strong and as effective as possible.
Thank you very much.
My next question is one that is raised at every committee meeting. I know the minister responded to this question, but I'd like to hear the thoughts of the witnesses currently on the panel.
Could you clarify your government's understanding of the difference between veto and FPIC?
A response from either witness is fine.
I can take that, and I might ask my colleague Sandra Leduc, who is also working on this file, to supplement.
From the government's perspective, I think what the focus is really on is free, prior and informed consent as a positive expression of the need for us to work in partnership and collaboration with indigenous peoples in all aspects of work that might impact on their rights and interests. The focus is very much on this more positive aspect of it, and less on this idea of veto, which of course finds no expression.
It's not found in the declaration itself. It is a way of articulating a lot of fears about what “free, prior and informed consent” means, but it is not grounded in the understanding of the declaration or the concept as we understand it.
Perhaps I'll ask if Sandra would like to add anything to that response.
Very quickly, FPIC implies context. You need to take context into consideration, whereas when you're talking about veto, you're not talking about the position or the facts; it's devoid of that context. That is why FPIC is very different and needs to be looked at each and every time, based on the context.
Thank you for that.
Members of the committee, in order to complete the round of questioning, we're going to have to extend. We also need to discuss Mr. Schmale's motion from the past hour and one other matter.
Could I have a motion to extend past one o'clock?
Mr. Chair, I'm wondering whether by “extending” we mean just by two five-minute and two two-and-a-half-minute rounds, or are you—?
All in favour please signify.
(Motion agreed to)
Thank you. We'll carry on with a five-minute round, which will complete the questioning today.
Mr. Melillo, go ahead, please.
Thank you, Mr. Chair. I thank our witnesses for joining us for this discussion.
I'm not going to address my question to anyone specifically. Whoever wants to jump in, please do so.
One thing that has interested me is that we've heard a lot from indigenous people and organizations who don't feel there has been adequate consultation on Bill C-15. We've even heard testimony in this committee from some indigenous organizations.... The Native Women's Association comes to mind. This is a group that had expressed concerns about the consultation process. I find it quite ironic that when we talk about Bill C-15, obviously the government has been emphasizing that it is brought forward in the spirit of reconciliation. However, there seem to be some gaps and some failures of adequate consultation with indigenous peoples.
To me, this runs contrary to what the government is trying to do. I do not doubt for a second the intentions of this bill; however, it seems that the government has missed the mark.
Again, whoever wants to jump in may. I'm wondering whether anyone can share some insights into the consultation process that has happened for Bill C-15 and say whether you believe there could have been a greater diversity of indigenous organizations represented in this consultation.
As we've heard and as you've heard, the time frame to meet the commitment to introduce this bill by the end of the calendar year was indeed tight. Having said that, over 70 meetings involving more than 450 people took place in this compressed time frame. I've said before that it's not really the quantity of engagement; it's the quality of the engagement that matters. As Minister Bennett noted, many of those discussions resulted in improvements to the bill as introduced.
I'd like to relate this quickly to the question from the previous member, which was around the going forward plan. Part of the reason the budget has allotted more than $31 million is to make sure we have a more robust engagement strategy going forward. We're working on that right now, and we've already begun discussions with a number of key players. There will be opportunities for many interested parties to have a say in that plan and the action plan as we move forward.
Thank you.
Perhaps I would just add a couple of considerations, if I may. As you may well be aware, there is a “What We Learned” report available on the Department of Justice's UN declaration website. It speaks to the engagement that took place. It very much shows, as Ross said, the level and the quality of input that we received, even though the period was relatively compressed.
I will note that contributions from groups including the National Women's Association of Canada, NWAC, very much influenced the bill as it is currently drafted, including the preambular paragraphs relating to the importance of taking diversity and gender into account in implementing this legislation.
Thanks.
Thank you both very much for those comments. With the time I have, I'll just quickly ask whether there was consultation with indigenous organizations and indigenous people specifically around the question of FPIC—around consent and how it should be interpreted.
Ms. Sargent, do you want to jump in there?
I'm afraid the question cut off just before I got it, but I understood it was specifically with respect to “free, prior and informed consent” discussions with indigenous partners.
The issue of FPIC and how it is understood did come up, although I would say that in many ways the focus of engagement was much more on the legislation itself and what it should contain. As the term is not defined in the bill, as has been noted, it was not the key topic of discussion.
There were, however, round tables held with industry—mining, forestry, energy and petroleum—in which indigenous organizations also participated and there were discussions about the concept, its meaning and implications. Certainly we heard feedback on that as well.
Thank you very much.
Mr. Chair, I believe I'm well over time. I had a five-minute slot.
I'll have to end it there. Thank you.
Thank you, Mr. Chair.
I apologize in advance for my connection today. I'm experiencing the same Rogers challenges and difficulties that many people connecting in the GTA are. If I drop off, I'll simply cede my time to the chair.
My question is basically twofold. It starts with what I've perceived as the mischaracterization of what free, prior and informed consent is and will be. Initially, a few meetings ago, FPIC was characterized as a veto. We've kind of gotten past that a bit, which is good. We're making progress.
After that, we got to the point with the other side saying, oh, advance disclosure is the status quo; it's totally adequate and has always worked, and why would we change it? Again, that's not something I agree with, but it seems as though we're past that point now as well.
Most recently, including at today's meeting, the question is, don't we just need a definition of this ambiguous term, “free, prior and informed consent”? I disagree. I don't think it's ambiguous. It's very clear what it is, and it implies partnership, involvement and engagement rather than just telling somebody in advance what's going to happen.
In addition to that, more recently we've heard that since there are a variety of valid concerns and, not surprisingly, a lack of total unanimity on the final product of what this will look like and how it should be implemented, it lacked the adequate amount of consultation with community and industry.
My question, therefore, has two parts. One, is the definition of FPIC necessary, or does it already exist? Two, is total unanimity ever a reasonable ambition worthy of pursuing throughout these consultations?
I'd start with Madam Sargent.
There are some important threads in that question.
In respect to the first part, regarding a definition of free, prior and informed consent, I think Minister Bennett provided very helpful responses: first, that because this concept or right is not defined in the legislation, it would in fact be somewhat strange to define it in the bill. Also, it is something that, as my colleague explained as well, has to be understood in context; therefore, trying to define it in a single way, in a one-shot definition, would be very challenging indeed. Those are considerations when we look to defining terms in legislation such as this bill.
With respect to your other question, about the pursuit of total unanimity, that is something that is a challenge in all contexts, for every bill in every context. It's not usually the standard, but I will leave it to others to speak more to the political considerations behind some of that.
Thank you.
Thank you.
Is there anyone else who might have some insight on those two questions?
No. I'll cede my remaining time to the chair.
[Translation]
Thank you, Mr. Chair.
I would also like to go deeper into a question that I asked Ms. Bennett earlier, and I want to make sure that I completely understand.
I asked her whether the bill had had a gender-based analysis plus, GBA+, and she said yes. She is also going to send us the results. However, I would like to be more specific about the premise for my question.
Some women's groups have mentioned that things are missing from the bill. That's why I asked whether an analysis has been done. I wonder why some women's groups consider that the bill does not accommodate their demands as women. I ask the question in good faith.
[English]
[Translation]
I think that I can answer that question. However, perhaps I will turn to my colleague Mrs. Leduc again, since she took part in the discussions with the Indigenous women's groups.
As we do for all bills or proposed policies, we did conduct a GBA+. Normally, that information is protected because it is in Cabinet documents, but we will see whether it is possible to send the information.
In addition, as I mentioned before, we made some amendments to the bill to accommodate the contribution of indigenous women's groups. Clearly, it's up to the representatives of those groups to tell you whether or not they are satisfied with those amendments. However, I believe that they did so the other day.
Mrs. Leduc may wish to say more about the changes that were made.
Thank you, Ms. Sargent.
We did indeed receive many comments from groups representing Indigenous women from all over Canada. They really helped us to strengthen the bill.
For example, in the preamble, we included a reference to the National Inquiry into Missing and Murdered Indigenous Women and Girls, and we also stress the importance of working with and consulting women.
We really did amend the bill to make it stronger.
[English]
Thank you so much, Chair.
Just building on the comments of Madam Gill, and even comments in terms of what has occurred in the committee, there's a real lack of indigenous voices and women's voices in the process. Going forward in consultation, how are women's and two-spirit voices going to be included in this process? Indigenous women, girls and 2SLGBTQIA are on the forefront of this human rights crisis, including around resource extraction, where we see higher rates of violence perpetrated against indigenous women and girls on our very own lands
Our voices are often marginalized, even more marginalized than that of resource extraction companies. We've heard a lot of consultation with mining. I'm wondering, moving forward in the consultation process, how we will ensure that indigenous women's and two-spirit voices will be lifted up in this process.
You're quite right that already in the course of our work, we have engaged with women's organizations in particular, having heard from them prior to the bill's introduction. However, to your point, we've heard some interesting observations from Pauktuutit, for example, and from the NWAC.
Pauktuutit have made the point and have stressed the point that the engagement with, for example, NIOs has been important, and that with land claims organizations has been critical. However, they have definitely made a point of emphasizing the need to have Inuit women's voices, for example, at the table. They've made the point about women who are inhabiting cities and the needs in particular that they face there. All of that has come to bear in informing us as we move forward. Certainly, the relationships we have established and will continue to establish will continue to inform our thinking, moving forward, on the development of the action plan.
Thank you, Chair.
To the witnesses, let me say that I'm not going to claim to be a lawyer here, but I'm going to read you something from a submission and ask for some clarification from your perspective. I'm not pretending to reflect legal opinion here.
The committee members received a submission from a Mr. Dwight Newman, who has a very impressive resumé as a professor of law and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan.
He talks about many of his writings being widely cited in Canadian courts and by scholars both within Canada and in the international community. He goes on to talk about some other things, but his is obviously a very respected voice on many of these issues.
In one comment in his brief, he says parliamentarians should seriously think about whether they wish to “adopt a statute that has these sorts of outstanding interpretative difficulties” or if it would be better to “improve upon the drafting to attain greater clarity”.
Skipping ahead a little, he goes on to say:
Parliament should consider asking for improved language that adds clarity, legal briefings on why particular language is thought to have certain effects, and ongoing scrutiny of these efforts through further outside analysis.
Finally, he specifically says:
There should...be further language to ensure that the final text affects only federal law. Section 4(a)'s use of the term “Canadian law” is different than the term “laws of Canada” used elsewhere in the bill. It is essential that the bill not include language that could be seen as impacting provincial law, or it will be susceptible to constitutional challenges.
Again, with my preface about not being an expert legal mind, I'm hoping somebody who has more of a legal mind might help us understand the concerns of somebody who, I think, is well spoken on this topic.
Thank you. I will do my best.
I can't resist mentioning that I clerked with Professor Newman way back when, so I know of his scholarly reputation and work. Of course, he has been flagging questions about Bill C-262 and this legislation along these lines for some time.
We have done our best, I would say, through the engagement process and the update and enhancements made to the bill to address some of the questions raised, notably by provinces and territories, in relation to the scope of application of this legislation.
Ultimately there is a very deliberate choice and use of words in various provisions in the bill. The one that was flagged with respect to application in Canadian law is intended to reflect the fact I spoke to at the beginning of this session, that the declaration can inform the interpretation of all laws in Canada—federal, provincial and constitutional—and so, to be accurate, would need to reflect that.
That said, you will see the obligation in clause 5 that relates to alignment of laws. It uses the terms “laws of Canada” and Government of Canada. That speaks to what Minister Bennett and deputy minister Quan-Watson were emphasizing: that this obligation to align laws applies to federal laws—those enacted by the Parliament of Canada.
You don't believe there's any confusion in that matter within the legislation, then, such that it might be misinterpreted to affect provincial law as well.
Our response would be that we have sought to make that as clear as possible in the legislation, recognizing that there is always potential for divergent interpretations. The effort has been made to use those terms deliberately and to reflect this point in both English and French.
Thank you. I appreciate that.
I'm going to take a totally different angle here, so I will back off the legal stuff.
There has been a lot of talk with people at committee, over the time we have been hearing from witnesses, about the action plan and how the action plan.... Even the minister, I believe, talked about how the heavy lifting isn't going to be done in the action plan. There has, however, been a lot of talk about maybe doing that action plan prior to the introduction of the legislation, rather than letting the legislation invoke the action plan.
I can start, and then perhaps Ross will have something to add.
As reflected in the response on what the government has done to align laws with the declaration, there has been a great deal of work done, not only in anticipation of this legislation potentially coming forward, but more generally in relation to the government's commitment to implement the declaration in Canada.
There continues to be work in relation to aligning laws with the declaration. There will, of course, be a further effort made to develop the action plan for the future, but again, this must reflect and respect the fact that the legislation requires it to be done in co-operation and consultation with indigenous peoples. There is no plan already set. It clearly needs to be done in a collaborative way.
Thanks very much for that. That brings us to time.
There are two matters that I need to bring forward. For one of them, we'll use the final Liberal portion to deal with an intervention by Mr. Battiste. He has requested to make a submission.
Mr. Battiste, do you want to speak to that?
Yes. Thank you, Mr. Chair.
Recently I received a letter from the Royal Society of Canada. This is a senior colloquium of public intellectuals, academics and scholars who support Bill C-15. I believe their input is valuable and should be incorporated into the study of Bill C-15, and I would like to put forward a motion to do so.
Earlier today I sent out the English version of the letter to committee members for reference and provided a copy to the committee clerk. Unfortunately, the Royal Society of Canada did not provide a French-language version. However, if adopted it would of course be translated and made available in both official languages.
Therefore, I move that, in relation to its study of Bill C-15, the committee accept the brief provided by the Royal Society of Canada.
[Translation]
[English]
[Translation]
[English]
Are we in favour of allowing this letter to be submitted to the committee, on division? Are there any nays?
[Translation]
Mr. Chair, I have a question concerning the committee's routine motions.
The document is submitted in English only. If I'm not mistaken, it should have been translated into both official languages when it was submitted. Is that actually the case?
[English]
That's correct.
Mr. Battiste, I understand your situation, but I'm concerned about a precedent that is clearly stated in the bylaws of the committee. Of course, your letter is directed to the Minister of Justice, Mr. Lametti, and to Ms. Bennett, so they would receive material that we would not have within our witness testimony.
Understanding that, do you still wish to move the motion?
All right. By show of hands, all in favour of accepting this submission from the Royal Society of Canada?
All opposed? I don't see any hands.
[Translation]
Mr. Chair,as I understand it, we are not abiding by the routine motions that the committee has passed.
[English]
[Translation]
[English]
Thank you, Mr. Chair.
I'll make this intervention in English so that I can be as clear as possible.
This motion does not go outside the routine motions regarding distribution of documents in both official languages. It has the effect of allowing the brief to be submitted past the deadline previously adopted by the committee, so it will still be translated before being distributed.
[Translation]
The situation is not clear to me. I wonder whether the clerk could give me a yes or no answer to my question.
Is submitting the document in English only in accordance with the routine motions that we have passed, as Mr. Baptiste assumes?
[English]
Thank you very much.
(Motion agreed to [See Minutes of Proceedings])
I believe then, once again, seeing no objections, that the motion is accepted, and the document will be submitted in translation at the appropriate time after the deadline we submitted.
Thank you.
Next we have the question from Mr. Schmale.
Would you pose that again, Mr. Schmale, so that we can be clear?
Thank you, Mr. Chair.
I'll try to be quick. I know people have places to be.
It is in regard to Minister Lametti's appearance today. Obviously he wasn't here. We would like to, on this side anyway, hear from the minister, as he is the sponsor of the bill. He is the one, as Mr. Vidal pointed out, to invoke closure on the bill within the House of Commons during debate.
To meet Mr. Battiste's concerns in regard to timelines, I could be wrong, but I don't think it will take two hours to go clause by clause through the bill. It's not overly long. I don't think there are a ton of concerns.
If possible, I'd like my motion to be that the chair and the clerk attempt to secure Minister Lametti's appearance at the next committee meeting, April 22 at 11 o'clock.
It's an important clarification, because there is almost no possibility of setting another meeting for Wednesday. The next open slot is on Monday. So the question, as you outlined it to committee, is whether we are willing to spend a few minutes at the beginning of the Thursday meeting to hear from the minister?
I see a number of hands up: Mr. Anandasangaree, Ms. Gazan, Mr. Vidal and Ms. Gill.
Leah, go ahead, please.
Thank you, Mr. Chair.
I would like to respect my colleague MP Schmale's proposal in principle and suggest that instead of a personal appearance, members of the committee are provided with an opportunity to submit questions to the minister, which he is to respond to, or his office is to respond to, before our next committee sitting.
Mr. Chair, I'm striving to be a bit facetious here. In my long and distinguished career as a member of Parliament and a member of this committee for the whole 18 months I've been here, I don't believe there's another example of having a witness appear and be able to give their submission without being questioned by the committee. I would be concerned about the precedent that sets.
The importance of this legislation and the importance of having the minister himself appear is crucial to moving this forward. I would obviously speak in support of Mr. Schmale's motion to ensure that Minister Lametti appears before we move to clause-by-clause.
[Translation]
Thank you, Mr. Chair.
Often, I do not hear you when you call on me, just because the interpretation continues. I hear two voices at the same time.
I just wanted to say that I support my colleague Mr. Schmale's motion about the minister's appearance.
Of course, I do not want our business to be unduly extended, but I would like him to appear before the committee.
[English]
Thank you, Mr. Chair.
I definitely appreciate everyone's comments here.
I think Ms. Gazan's suggestion is quite reasonable. Right now I think Minister Bennett has already read the statement that Minister Lametti was supposed to present today. I propose the opportunity for questions, and given the makeup of this committee, we'd have five questions for the Conservatives, five for the Liberals, four for the Bloc and four for the NDP, with a response deadline of five o'clock tomorrow. The information could then be presented and accepted as formal submissions to this committee.
It's fair to say that Minister Lametti regrets not being here. He's been very engaged on this file. We've had a number of discussions over the past several weeks, and I know he regrets not being here. I think it's important and imperative that the information provided by our witnesses today, which has been exhaustive.... If further clarifications are needed, the suggestion that Ms. Gazan made, with minor modifications, would and should suffice to ensure that the minister's comments are on the record.
By the way, I'll excuse our witnesses. Thank you very much. I wondered if perhaps there would be some reference to the staff, but if you folks are fine, then we'll allow you to depart the meeting.
What we have before us is a motion, and the discussion about the motion was a new suggestion. The first thing we have to deal with, if it's our intention to go along with Ms. Gazan's proposal, is the motion.
[Translation]
[English]
All right. We'll have a recorded vote on Mr. Schmale's motion.
(Motion negatived: nays 6; yeas 5 [See Minutes of Proceedings])
Members of the committee, I am expecting, then, that those who wish to hear from the justice minister will provide him with their questions.
Mr. Clerk, when would we require the answers to be given?
[Translation]
[English]
[Translation]
I did not want to interrupt you. I just wanted to clarify one thing. We were told that four people voted for the motion. In fact, the votes were Mr. Melillo, Mr. Viersen, Mr. Schmale, Mr. Vidal and myself. That makes five people. I wanted to make sure that the five votes had been counted.
[English]
With that in mind, Mr. Chair, questions are to be posed by 5 p.m. today, with the response from the minister by 5 p.m. tomorrow. In the meantime, on the number of questions, I had suggested five, five, four and four. We just need agreement on that.
I think a 24-hour turnaround time is sufficient, given that the response will be in both official languages.
Is there anyone opposed to the suggestion by Mr. Anandasangaree?
I see no opposition, so that's what we will do.
Ms. Gill, are you okay? I see your hand.
[Translation]
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