Interventions in Committee
 
 
 
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Perry Bellegarde
View Perry Bellegarde Profile
Perry Bellegarde
2019-06-18 11:26
Thanks, Mr. Chair.
[Witness spoke in Cree]
[English]
To all the distinguished members of the committee, I'm very happy to be here acknowledging you all as friends and relatives. I also acknowledge the Algonquin peoples for hosting this on their ancestral lands. For me, from our AFN, I'm happy to be here.
I want to share some perspectives. I'm very honoured to speak here on behalf of the Assembly of First Nations regarding Bill C-100. I'll also say a few words about the process to negotiate, ratify and implement the Canada-United States-Mexico agreement.
Trade in resources and goods in this land, I always say, began with us, the indigenous peoples. The participation now in 2019 in international trade should not be seen merely as part of history. Going forward, how do we get more involved?
As self-determining peoples, we have interests and rights respecting today's international trade agreements. We've always said that for far too long we have not seen the benefits from international trade flow to our businesses or to our communities as first nations people. These facts should form a part of legal and political frameworks when Canada explores new free trade agreements. I've always said, from a first nations perspective in Canada, that whenever Canada goes out to negotiate or discuss anything from softwood lumber to trees, anything from potash in southern Saskatchewan, to uranium in the north or any oil, coal, or whatever natural resource it is, indigenous peoples should be involved and should be participating, because there's respect or reference that we still have unextinguished aboriginal title and rights to the land and territory and resources. It's a simple fact. So we need to be involved.
When Canada, through Minister Chrystia Freeland, welcomed me to be on the NAFTA advisory committee, it was very important, because to date, indigenous peoples haven't been involved. We also had indigenous officials working as part of the working group. In the end, we'll say that this work resulted in the most inclusive international trade agreement for indigenous peoples to date. It's not perfect, but to date it's the best that we have in Canada.
With the ratification of the Canada-United States-Mexico agreement, we would take a step to making international trade more aware of and more equitable in its treatment of indigenous peoples, and especially for indigenous women entrepreneurs. We still have more work to do.
We believe the Canada-United States-Mexico agreement is a step in the right direction with the new general exception for indigenous rights with respect to inherent and aboriginal and treaty rights. As well, with specific preferences to carve out procurement benefits and other opportunities for indigenous businesses and service providers, there's also a promise of future co-operation to enhance indigenous businesses. As well, importantly, the investor-state dispute settlement process, which was a threat to indigenous people's rights, will be phased out for Canada. This is the groundwork for positive change.
While the Canada-United States-Mexico agreement is a new example of the difference it makes to engage with indigenous peoples at an early stage, there must be increased opportunities for first nations participation not only in international trade negotiations but also in trade missions.
Canada should extend an official role to first nations in negotiations of all international agreements on trade and investments that impact inherent treaty aboriginal rights. This would better reflect the nation-to-nation relationship and the whole-of-government commitment by Canada to implement the United Nations Declaration on the Rights of Indigenous Peoples. In addition, the inclusion of first nations leads to better decisions and better outcomes.
With regard to Bill C-100, what I'm recommending to all the committee members here is that there should be in place a non-derogation clause. It's a safe clause, that nothing in this agreement will affect existing aboriginal treaty rights, which are affirmed in section 35 of Canada's Constitution. I'm making that recommendation as well as that it be interpreted and implemented consistent with those rights in section 35. It's good to have it ratified by Canada, the United States and Mexico on one hand, but each nation-state will come back and do some sort of legislation with the implementation. That's the piece we're looking at making the recommendation on. I'm not advising that we open up the agreement; no, leave it the way it is, but move in tandem with the other two countries to get it ratified. We have to be careful to be not too fast and not too slow, because if one of the three countries doesn't get it ratified, the deal is not going to be implemented.
It's not just that international trade and investment agreements can impact our rights, but also how the agreement is implemented through domestic regulatory and policy matters. That has to be looked at. Once the agreement is ratified, we must work together to realize the economic gains and ensure the provisions related to indigenous peoples in international trade agreements are implemented in a manner that brings greater economic equity to first nations peoples.
The first area where indigenous peoples can see the benefits from this agreement is government procurement. Procurement is always a big thing. Everybody says this should be easy, that it's low-hanging fruit. Canada must move from policies and objectives to mandatory requirements for procuring goods and services from first nations businesses. The Assembly of First Nations is ready to work with Canada to make sure we develop legislation together for social procurement that benefits first nations and other indigenous peoples.
The only other thing I'd like to share here before concluding is there are three or four very important bills we want to see passed before this week is up. Bill C-91 on languages, Bill C-92 on child welfare, and two private members' bills, Bill C-262 and Bill C-337, all need to be passed. If in the event the legislature is called back, those should form the priority. But we're hoping and praying that all MPs, all the leadership here on Parliament Hill, will get behind and pass those pieces of legislation as soon as possible.
That's it, Mr. Chairman. Thank you for the time.
View Tracey Ramsey Profile
NDP (ON)
View Tracey Ramsey Profile
2019-06-18 12:37
Thank you so much.
My questions are for Chief Bellegarde.
I take your point that this was the most inclusive deal to date, but certainly we'd like to see a true, nation-to-nation.... We would like to see indigenous peoples at the table as full partners in the negotiations.
Well, first of all, I want to say thank you for your push on those important pieces of legislation, including Bill C-262, Romeo Saganash's bill. It's very important that this bill pass.
When you were here previously on the TPP in June 2016, you brought the issue of a development of a human rights impact assessment for all trade agreements. You talked about the recommendation from Olivier De Schutter, the UN special rapporteur, to use the United Nations Declaration on the Rights of Indigenous Peoples as a basis for assessing the impact of all trade agreements. I wonder if you can speak to whether that was a consideration in this agreement, or if there was any movement made in this agreement towards that important step.
Also, I look at your document here, and the first item of article 19 states that indigenous peoples must have free, informed and prior consent. I'm wondering if that's been obtained around this agreement. If not, were there conversations towards how that would be implemented in further trade agreements?
Perry Bellegarde
View Perry Bellegarde Profile
Perry Bellegarde
2019-06-18 12:38
One of the things that we're looking for is to go beyond the duty to consult and accommodate. Working towards free, prior and informed consent creates economic certainty.
There's been such a dialogue, discussion and debate in this country regarding the UN declaration, and I spin it around and say that it creates economic certainty. It creates economic certainty in every province and territory once it's passed. Governments and industry will know what the rules and terms of reference are. That's what it is. You have to know what the rules are.
As indigenous peoples, we're not stakeholders. We're indigenous peoples with rights and title, and that has to be respected. That's what this speaks to. When we talk about a human rights impact assessment, it's having impacts on all that because when we started talking about CUSMA.... There are four chapters, labour, environment, gender and indigenous people, and people are asking what that has to do with business. Well, it has a lot to do with business when you want to create the right environment for investments and economic certainty, so it's very important.
Those are some quick comments within my time—I know the chair's giving me the eye. We have to get that passed in terms of economic certainty—Bill C-262. It does create that economic certainty, and that's what we all have to push for.
Edward John
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Edward John
2019-05-09 8:43
Thank you, Madam Chair. Good morning, committee members.
I'd like to acknowledge the Algonquin people as well, and their traditional homelands.
We're from the same organization in British Columbia, so I won't go into that background. I do want to mention that on submitting this report, the Premier of British Columbia asked, given the significant numbers of children in care, to seek advice on what the province ought to be doing. It's close to a 200-page report with some 86 recommendations. It takes an extensive look at the impacts of laws, policies and practice standards.
I didn't start there. I started in the communities, asking them what they thought and how they felt about how these provincial laws, policies, regulations and practice standards impacted them. This story is really from their perspective. It's the practice side of this impact in our communities. The clerk has this, as well as a summary. There's another document that was tabled with the clerk with our position.
Bill C-92 represents a clear advancement for prevention, early intervention and protection services—in section 1—for indigenous children, youth and families in their respective communities while acknowledging and respecting the diversity of indigenous peoples.
The bill speaks to indigenous youth, but in the operative sections of the bill, the youth are not included. I think it's something that needs to be considered. It may be an oversight.
The national advisory committee is an advisory committee to the Minister of Indigenous Services Canada. The interim report from that committee was submitted to the former minister of Indigenous Services Canada, Jane Philpott, and the AFN National Chief Perry Bellegarde. I chaired that committee. The recommendation from that committee was that the federal government consider enacting federal legislation to address the staggering challenges faced by first nations people relating to children and families. Minister Philpott concluded that these challenges amounted to humanitarian crises. We all recall that moment.
Indigenous peoples developing their own laws, regulations, policies and practice standards will exercise their responsibilities in a modern context and uphold and act on their inherent rights to support their children and families. Their laws: by them, for them. Clause 18, read together with clauses 2 and 8 provide a necessary and critical foundation for this.
The operative principles of “substantive equality” in subclause 9(3) and “cultural continuity” in subclause 9(2) are essential for indigenous peoples. When combined with the necessary and extensive support from the federal and provincial governments, they will help to address the deeply rooted ravages of over 150 years of deliberate and misguided assimilation of Crown laws and policies. The final report of the Truth and Reconciliation Commission called it “cultural genocide”.
Bill C-92 together with Bill C-91 on indigenous languages provide a substantive framework to remedy past government policy pillars to “kill the Indian in the child” by removing the child from siblings, family, community, foods, lands, territories and resources; and providing education to Christianize and civilize the child by declaring as inferior indigenous philosophies, teachings, languages and culture.
The proposed legislation has shortcomings and is not exhaustive. For indigenous peoples, there will be both internal and external challenges, obstacles and hurdles for the full and effective realization of this significant aspect of the right to self-determination. Constructive and desperately needed changes for indigenous peoples will take time.
I have three recommendations that I want to deal with.
Clause 15 should be strengthened by ensuring the necessary support and other measures for parents, extended family and community, so that no child is removed for reasons related to poverty or the socio-economic circumstances of the child's family.
The recommendation on financing and funding is critically important. There's only one reference in the preamble. The recommendation is that the underlying substance of this acknowledgement should be moved from the preamble to the operative provisions of the bill.
I agree with the recommendation on amending article 8 of the UN Declaration on the Rights of Indigenous Peoples.
We are hopeful that the three bills, Bill C-262, Bill C-91 and Bill C-92, will be adopted and royal assent will be given before the end of this Parliament's mandate.
Finally, the budget implementation legislation, which contains many significant financial commitments to first nations, Inuit and Métis people needs to be adopted. We cannot have Canada's commitments die on an Order Paper. We've been through that once before.
Thank you.
View Cathy McLeod Profile
CPC (BC)
Thank you to all the witnesses. We've heard very compelling testimony.
As you are aware, this bill is supported on all sides of the House. It's just a matter of trying to make sure it is as good as it can be. I don't think anyone believes it is a perfect bill. I think we're trying to do our best to make it better than it is.
I'm going to start with Grand Chief John. The piece I've struggled with is there was talk about the UN declaration and embedding Mr. Saganash's Bill C-262 into the legislation. That would compel free, prior and informed consent from all the impacted first nations, indigenous peoples.
We're going to hear testimony later from the Assembly of Manitoba Chiefs and others who are not supportive of this bill. Clearly, they are not giving free, prior and informed consent. I would really appreciate hearing how you align those two concepts. You're asking us to pass a bill. We know significant communities in this country—according to the article in the UN declaration and free, prior and informed consent—would be telling us not to do it.
Perry Bellegarde
View Perry Bellegarde Profile
Perry Bellegarde
2019-05-09 11:11
It's a good question, again, and I know we've met with your leader as well many times and we've discussed these. I would say there are many important bills, but we always focused on C-91, languages; C-92, child welfare; and then C-262, the UN declaration.
I said that I'd be a happy national chief if they all pass by the end of June. I know the issue is free, prior and informed consent. People think, “Is it a veto?” and “Did you hear from Paul Joffe and other experts?”
I say that it's not a veto, but you have to respect aboriginal rights, inherent rights and treaty rights, and involve the rights and title holders sooner than later in any initiative. With free, prior and informed consent, when people.... You mentioned that the Assembly of Manitoba Chiefs are going to say, “Don't pass this”. That is a region and that's a regional chief. Grand Chief Arlen will be here to say that.
You know the numbers in Canada. There are 203 chiefs in British Columbia. There are 47 in Alberta. There are 74 in Saskatchewan. There are 66 in Manitoba. There are 134-plus in Ontario. There are 47 in la belle province of Quebec. There are 13 in Nova Scotia, 15 in New Brunswick, two in P.E.I., two in Newfoundland, 14 in the Yukon and 28 in the Northwest Territories.
Do you think there's unanimity?
There you go, but we have 400-plus chiefs supporting this. We have numerous resolutions to support this. I would encourage people to look at starting to fix this, because I'm going to disagree with people in a respectful way that the status quo is not acceptable, and it should not be acceptable to have 40,000 children in foster care. That's where my head goes at all times.
Hannah Martin
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Hannah Martin
2019-04-02 12:28
My question has to do with Bill C-262, which is the private member's bill on the United Nations Declaration on the Rights of Indigenous Peoples. As you know, the Government of Canada spoke at the United Nations in 2016, officially declaring that Canada would be adopting this piece of legislation without qualification. I would like to hear your thoughts on this. Personally—and this is the belief of many indigenous people in Turtle Island—I believe this document has to be presented and legislated as a full box of comprehensive rights. It can't be chopped up and divided, or it's going to lose its essence as a piece of legislation.
I would like to hear from anyone who's willing to speak to this.
Abel Bosum
View Abel Bosum Profile
Abel Bosum
2019-02-28 16:53
Good afternoon, Madam Chair, and honourable committee members.
[Witness spoke in Cree as follows:]
?????? ???? ?????, ? ? ???????? ? ? ????? ???, ? ? ??????? ??? ??? ???????? ????
[Cree text translated as follows:]
Today I thank God that he has made it possible for me to speak to you and also from our people.
[English]
I just wanted to give thanks to our creator for the gift of our language in Cree, and the ability to speak it. My name is Grand Chief Abel Bosum, and on behalf of the Cree Nation of Eeyou Istchee, I am pleased to appear before you today. I am accompanied by Dr. Sarah Pashagumskum, chairperson of the Cree School Board and CEO of Aanischaaukamikw Cree Cultural Institute; Dorothy Stewart, Cree language coordinator, social and cultural department; Tina Petawabano, responsible for indigenous relations with the Cree Nation Government; and Paul Joffe, legal counsel.
The Cree Nation of Eeyou Istchee includes more than 18,000 Eeyou Istchee, or Cree, occupying our traditional territory of Eeyou Istchee. This territory covers around 400,000 square kilometres and is located mainly to the east and south of James Bay and Hudson Bay, with additional territories in Ontario.
The social and cultural department is responsible for the Cree nation's language program and policy. Aanischaaukamikw Cree Cultural Institute is a museum, archive, library and research and education centre. The Cree School Board, over the past decades, has played a large role in Cree language research and program development as a primary instrument for Cree language maintenance in our territory.
From the outset, we wish to acknowledge the potentially far-reaching significance of Bill C-91, an act respecting indigenous languages. At the same time, we fully recognize the important challenges associated with reclamation, revitalization, maintenance and strengthening of indigenous languages. Clearly, there must be adequate space and flexibility to accommodate the perspectives and priorities of each indigenous people or nation.
It is important to note that according to the General Assembly of the UN, sustainable development includes language and cultural development. Also, there is a consensus that no one must be left behind. This explicitly includes indigenous peoples.
In our experience, implementation and enforcement of legislation are always a challenge. In particular, adequate resources are urgently required to carry out the programs and other initiatives for language development and preservation at all stages. At this crucial point, we need more clarity in regard to the specific global amounts that the federal government is setting aside for at least the next five years. This will help our ongoing planning and other activities under Bill C-91.
Fluency in languages is recognized globally as the most important standard. We are pleased that Bill C-91 consistently refers to fluency as a key standard and objective. In addition, we wish to underline the critical importance of the bill in linking indigenous peoples' languages to the calls to action of the Truth and Reconciliation Commission and to the United Nations Declaration on the Rights of Indigenous Peoples.
At the same time, it's important to underline here that as indigenous people with the right of self-determination, we view our rights in a holistic manner. All of our inherent and pre-existing rights are interrelated, and interdependent. Our rights to language and culture cannot be separated from other inherent rights, especially our rights to lands, territories and resources. With respect to Cree language and culture, the words we speak derive from our relationship with the land. The words, thoughts and world views that we pass on to our children are connected to the land.
These essential interrelationships are explicitly affirmed in the UN Declaration, in its seventh preambular paragraph:
Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.
Therefore, it's important to highlight the pressing need for umbrella legislation under the UN declaration. Such legislation, namely Bill C-262, has already been passed by the House of Commons and is currently at second reading in the Senate. We are proud that Romeo Saganash, a member of our Cree nation, sponsored Bill C-262, the United Nations Declaration on the Rights of Indigenous Peoples act. This bill will advance the human rights of indigenous people in Canada. It will also set an important precedent for indigenous peoples in other countries worldwide.
As underlined in call to action number 43, the Truth and Reconciliation Commission calls on the federal government and all levels of government to implement the UN declaration as a framework for reconciliation. Therefore, implementation of the declaration is inseparable from the TRC call to action. Any member of Parliament who fails to support the UN declaration is also undermining Canada's national reconciliation initiative.
As highlighted in the preamble of Bill C-91:
...2019 has been proclaimed by the General Assembly of the United Nations as the International Year of Indigenous Languages to, among other things, draw attention to the critical loss of Indigenous languages and the urgent need to maintain, revitalize and promote Indigenous languages;
Such loss or severe impairment of indigenous languages—whether through residential schools; dispossession of lands, territories and resources; forced assimilations; destruction of culture; or other acts of colonization—must be redressed in authentic ways. Such ways must respect our ability to determine ourselves how we will maintain our languages and the vehicles that we will utilize to do so.
We look forward to working harmoniously with the federal government and others to achieve the critical objectives of Bill C-91.
[Witness spoke in Cree as follows:]
?????, ???????
[Cree text translated as follows:]
Thank you, I thank you all.
[English]
Wilton Littlechild
View Wilton Littlechild Profile
Wilton Littlechild
2019-02-28 17:15
That's what I mean by the UN declaration. It's Bill C-262. They're complementary; they support each other. There isn't a contradiction—in my estimation, anyway.
Ian Thomson
View Ian Thomson Profile
Ian Thomson
2019-02-19 15:42
Good afternoon, committee members. Thank you for inviting Oxfam Canada to be part of this study today.
I'd like to join my fellow witness in acknowledging the Algonquin territory on which we're meeting.
My name is Ian Thomson. I'm a policy specialist with Oxfam Canada focused on the extractive industries.
Oxfam in an international NGO. We're active in more than 90 countries, working through humanitarian relief, long-term development programs and advocacy to end global poverty.
At Oxfam, we firmly believe that ending poverty and reducing inequality begins with gender justice and women's rights. Oxfam works with indigenous people's organizations in many parts of the world to support their struggles, to defend their rights and to protect their lands, territories and resources.
In 2015, Oxfam surveyed 40 leading oil, gas and mining companies to assess their commitments around indigenous engagement and community consent. Our community consent index revealed that extractive sector companies are increasingly adopting policies with commitments to seek and obtain community consent prior to developing major projects. It has become a recognized and accepted industry norm. It's good development and good business all at the same time.
Further research, however, has identified major gaps in the ways these commitments are being implemented. In several countries our indigenous partners have found that women face systemic barriers in participating fully and equally in decision-making by governments or companies around major resource development projects.
We have two recommendations for the committee to consider today.
First, indigenous engagement processes, whether by the Crown or by private sector actors in the energy sector, should become more gender-responsive and conducted in accordance with international human rights standards, including the UN Declaration on the Rights of Indigenous Peoples.
Second, the Canadian government should be proactive in promoting gender-responsive and rights-based engagement internationally through our trade, aid and diplomatic relations.
I would like to share some research and findings from two indigenous partners in Peru and Kenya that illustrate both the real challenges and opportunities in this area.
A decade ago, social conflicts over energy projects in Peru boiled over into violent confrontations. The conflicts revealed deep failures on the part of both governments and companies to engage indigenous peoples in a meaningful way in decisions around major projects.
In 2011, Peru adopted a new law on indigenous consultation or consulta previa. To date, 43 consultation processes have been recorded by the Peruvian government, 30 of them related to energy or natural resource projects. The Ministry of Energy and Mines reports that only 29% of the participants were women.
In December, with the support of Oxfam, ONAMIAP, the indigenous women's federation of Peru, published a study examining women's participation in these consultation processes over the past seven years. The study was aptly named “Without Indigenous Women, No Way!”. ONAMIAP had conducted surveys with indigenous women in different parts of the country to identify barriers to their participation. Women's participation was hindered by their limited experience of participating in public spaces, the domestic care work that was not taken into account by those organizing when and where consultations were held, the very technical content presented without adequate time or support for people to make sense of projects, lower literacy rates and language barriers, failure to recognize women's rights with respect to communal lands and forests, consultation methods that did not address gender needs, and a lack of genuine dialogue with processes directed at convincing communities to accept projects and conditions.
ONAMIAP recommends that governments and project proponents should be explicit about the differentiated impacts of projects on women and men. Women must be included fully and equally at all stages of decision making processes. Finally, public policy reforms are needed to recognize women's rights and access to communal lands and forests, which would facilitate their participation in these processes.
Last April, Oxfam invited the president of ONAMIAP to an indigenous women's gathering in Montreal, spearheaded by Quebec Native Women. Indigenous women leaders from a dozen countries gathered together to share their experiences, and they quickly learned that their experiences shared striking similarities. Everywhere they recognized that they were tackling an entrenched gender bias in how decisions are made around energy and natural resources.
Turning now to Kenya, where Oxfam is also researching indigenous rights, and in particular the free, prior and informed consent standard, our 2017 study called “Testing community consent” focused on Turkana County, one of the poorest and most remote regions of the country, where significant oil and gas deposits have been discovered.
While most people noted that company engagement practices though initially poor were steadily improving, many key ingredients of free, prior and informed consent were not present. In particular, we noted that pastoralist women who engaged in traditional livelihoods of nomadic herding had been unable to participate in community meetings over oil and gas development projects. Their livelihoods would be affected by the well pads and pipelines and roads being built in the area, but they were least likely to participate due to how the engagement process had been conducted. This year, Oxfam is planning to do follow-up research to look more closely into how those gender justice gaps can be addressed.
Our first recommendation to this committee would be to ensure that indigenous engagement is conducted in a manner that is gender responsive, advances gender equality, and that is consistent with international human rights standards, including the UN declaration. We believe that energy projects must go beyond “do no harm” and actually be transformative and positive changes to advance gender equality where they're being developed. This also means listening to and respecting indigenous people when they say no to certain projects. Project reviews that listen to women and men and take into account the differentiated impacts will result in better-designed projects and share benefits more equitably.
Oxfam is pleased that gender responsiveness could soon be added to federal impact assessment processes through Bill C-69, currently under review in the Senate. Oxfam supports this bill and hopes that gender-based analysis in project reviews will establish this norm across all industries and unlock even more systemic change. Likewise, we welcome Bill C-262, which would ensure that Canadian law is consistent with the UN Declaration on the Rights of Indigenous Peoples.
Interestingly, our stories from Peru and Kenya also have a direct connection with the Canadian energy sector. Peru's largest oil concession, known as Block 192, is operated by a Toronto-based company, Frontera Energy. In Kenya, the oil project in Turkana County that we studied is a joint venture that involves a Vancouver-based company, Africa Oil Corporation. Both of these companies, within the past two years, have had to temporarily suspend their operations due to indigenous protests over unresolved community grievances. Canadian companies operating internationally risk losing their social licence to operate if they can't foster positive and respectful relationships with indigenous peoples.
Our second recommendation is for the Canadian government to take action and raise the bar for Canadian companies operating internationally. The long-awaited Canadian ombudsperson for responsible enterprise, announced by the international trade minister over a year ago, should be appointed without delay and granted the necessary powers to investigate corporate practices internationally.
Canadian embassies should provide more support to women human rights defenders who are working to defend their rights and participate in major decisions around energy projects.
Export Development Canada should have a statutory requirement to respect human rights and gender equality in all of its business transactions.
Finally, Canada's international assistance should support indigenous peoples organizations to engage in and transform natural resource governance, particularly indigenous women's organizations like ONAMIAP in Peru, which have identified many of the solutions but are sorely under-resourced.
I would like to conclude by saying that we believe major energy projects in the future will look very different when they genuinely engage indigenous peoples and respect their inherent rights and title. An energy transition is under way, and Canada can position itself as a leader in the new energy economy.
I'd like to thank the committee for engaging in this study and would welcome any questions you may have.
View Richard Cannings Profile
NDP (BC)
Okay.
I'll turn to you again, Professor Dorough. You ran through that coverage of UNDRIP and FPIC pretty quickly. I just wondered if you could comment on how in Canada the government has expressed a desire to include UNDRIP in its laws and the way it operates.
My colleague Romeo Saganash had his private member's bill, Bill C-262, passed in the House of Commons. It asked the government to include those provisions in the laws of this land. I'm just wondering if you could comment on that process, on where we are and maybe on where other countries might be that have also signed on to UNDRIP and what we could learn from that.
Byron Louis
View Byron Louis Profile
Byron Louis
2019-02-05 16:39
Thank you.
First, I would like to acknowledge I am giving this presentation on the traditional territory of the Algonquin people.
Members of the committee, friends and relatives, thank you for the invitation here today to share the perspectives of the Assembly of First Nations on international best practices for engaging with indigenous communities in major energy projects.
I would like to start with the important point from our national chief, Perry Bellegarde, who said that first nations are not opposed to the development, but we will balance what is right for the economy with what is right for the environment and our responsibilities to our traditional territories.
Clearly, when we consider the energy and mining sectors and how important they are to our local, regional and national economies, I am again reminded how closing the gap must be part of the energy discussion.
A key component of closing this gap is fulfilling the promise of a nation-to-nation relationship with clear decision-making processes through partnerships. This is a key component of achieving consensus—to realize a process that all Canadians and first nations can have confidence in.
We have been working in partnership to identify and address transboundary mining issues that impact our territories. This is reflective of some of the collaborative work that has been occurring in British Columbia. One of the examples I would like to give is our relationship with the Colville confederated tribes who reside in Washington state. The majority of our people reside in Washington, Idaho and Montana. They are Nsyilxcen-speaking peoples who are still members of our tribal council. One of the issues that came out of impacts to mining was a resulting case in the United States where they took Teck Cominco to court and successfully had a lawsuit against them for downstream damages from Teck Cominco, which is located in the Canadian portion outside of Trail, British Columbia. They were dumping tailings into the Columbia River for well over 100 years.
This resulting court case that had been launched and was successful found in U.S. courts that the Canadian mining firm, Teck Cominco, could be charged with damages to U.S. downstream effects.
The other part of this is that to date, through the Columbia.... This was starting in about 1946, with building the Grand Coulee Dam in Washington state. Canada had identified that there were no upstream impacts, resulting in not only the building of Grand Coulee Dam—half of it on Colville Reservation—but leading to Chief Joseph. I think there are upstream treaty and non-treaty reservoirs that serve this high-head dam for energy production in the United States, which basically benefits Canada in that particular area.
What I find is that sometimes people say hydroelectric energy is clean energy. No, it's not—not from an aboriginal context and the impacts to aboriginal people when you change the natural hydrograph to one that is developed along filling reservoirs that slow down the speed of the water where what was usually freshets carrying smolt salmon to the Pacific Ocean. It also impedes upstream migration of Okanagan sockeye that travel through nine dams in the United States.
Two or three years ago, we had changes. What happens in the Okanagan system is that in the water column, deoxidized water happens at a certain level where fish, especially salmon, can't survive. You have what's called thermal blockage, where salmon in the Columbia River can withstand temperatures to 22°C. When you have a dam, the water changes; it almost decants, where it takes off the surface of the water and flows into the next reservoir.
In the summer months you also have heated water that's flowing down through the systems that ended up in the Rufus Woods Reservoir in Washington state. As a result of this squeeze, we lost 200,000 of a return of 400,000 sockeye. At one time in the 1990s we had fewer than 600 sockeye returning to the Canadian portion. The Okanagan system is basically the only system within the Columbia Basin where we still have anadromous species returning to Canadian waters, which happens in the Okanagan sub-basin.
This is an example of a measurable outcome or impact of what would be classified as a major energy project.
To move along in there, I think the fact that in a 2015 report, an independent working group on natural resources called for immediate action to ensure all first nations participate and share in benefits of natural resources development in Canada. Recommendations included the establishment of a national round table inviting first nations, provinces, territories, industry and non-governmental organizations; the launch of a discussion on resource revenue sharing as the best means of eliminating socio-economic disparities; the establishment of central knowledge and information resources to support first nations; and the international forum to promote first nations trade and international partnerships.
First nations as rights holders, as owners and as a burgeoning labour market force must be participants in and part of solutions going forward. First nations businesses must be included in contracting processes and benefits from procedural procurement opportunities. Processes must bring together mechanisms that involve licensing, engagement and good practices.
The energy sector and, in fact, the broader Canadian economy is a much-needed partner and not excluded from the work towards a renewed relationship.
When we're talking about reconciliation, I think from a first nations perspective we really need to come to what is actually a definition of “reconciliation”. You look in the dictionary for an example or a meaning of reconciliation, and it is a renewal of relations after a long period of hostilities, which basically describes first nations' relations with Canada for a long period of time, whether it's with Canada or the provinces.
What is the definition of what we're using for reconciliation? Is it more or less the international model that could be actually construed as being an example of what happened after the Second World War with Germany, Italy and Japan being able to rebuild socially and economically? Is that the type of reconciliation we're talking about, or is it something less? Because with first nations I think we need the opportunity to rebuild, not only socially but economically. Major projects play a large role in that.
Before we get into specific examples, I want to start by framing where we are. This is an opportunity for real reconciliation. First, as we're well aware, Canada has announced its full and unqualified support of the United Nations Declaration on the Rights of Indigenous Peoples. This declaration did not create any new rights as these rights are inherent or pre-existing; it simply affirms indigenous peoples' human rights.
Across government, including Bill C-262, we talked about realizing these rights and finding a better way to work together so that we don't have to spend millions of dollars and waste years in fighting the courts. Poor environmental processes lead to hundreds of unnecessary judicial reviews annually. Partnerships with first nations must respect and realize existing rights. It's about working with us to establish the laws, policies and practices needed to respect our rights and status as self-determining peoples.
Inevitably, the conversation will slip to the standard of free, prior and informed consent. To be very clear, free and prior informed consent was not created in the UNDRIP or the rights of indigenous peoples. It was not created in Bill C-69 or in Bill C-262. It was already existing in international law.
It is an essential element of the right of all peoples, including indigenous peoples, to self-determination, which Canada has recognized for decades. For example, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, have, in their first article, that “All peoples have the right of self-determination.”
Consent is essential for nation-to-nation negotiation and for treaty interpretation, treaty-making in general. It is between self-determining nations. The first nations already have the right to participate in decisions that can affect their rights, property, cultures, environment and capacity to exercise their right to self-determination.
What does this mean in the context of this study? What is needed is a better process for major energy projects, one that is designed with first nations, one that involves first nations from the start. There is no need to reinvent the wheel here. Free, prior and informed consent exists around the world. There is already a lot of international jurisprudence to draw on.
On first nations leading the energy transition, when given the space, first nations have participated in and benefited from energy development.
As many of you already know, first nations across Turtle Island are achieving investments in clean energy and low-carbon economy. These investments are being supported by an aggressive Government of Canada approach to investing in energy sector projects that support the transition to a low-carbon economy: generation, transmission and export. For example, the federal budget commits $2.37 billion over four years to Canada's clean technology industry. As well, the government outlines its plan to invest $21.9 billion over 11 years in green infrastructure.
Our teachings have taught us to be stewards of the land. With that, first nations can be champions when it comes to clean energy and alternative energy moving forward. As a result, first nations are increasingly joining Canada's growing clean energy economy as a way to generate revenue in a manner that is consistent with our cultural and environmental values.
A focus of these efforts must be to encourage and support energy independence and assist with the transition away from diesel power generation for approximately 112 diesel-dependent first nations across Canada, 42 first nations in the territories and 70 first nations in the provinces.
One of the Generation Energy Council's five principles is “A collaborative transition … integrating Indigenous values into the process at every step and creating opportunities for reconciliation and new partnerships with Indigenous peoples.” In this report developed by the council, it's recommended that indigenous peoples have involvement in energy governance, investment tools and capacity development.
Last year, the Assembly of First Nations hosted a one-day session in advance of the Generation Energy Council process. The consistent theme from that discussion was a need for collaboration with first nations, a true and meaningful engagement, and federal government and territorial policy.
There is more, but my 10 minutes are up.
Kluane Adamek
View Kluane Adamek Profile
Regional Chief Kluane Adamek
2018-11-08 12:23
Thank you.
I'm really pleased to be here. I want to acknowledge the national chief of CAP, and of course that we are on the unceded Algonquin territory and also paying particular tribute today to our aboriginal veterans. Today is the day we honour and acknowledge them, and I'm wearing my new piece of regalia.
I have a beaded poppy that I'm not wearing at this moment but it's on my jacket. It's a really important day. I'm very humbled to be here to share perspectives with respect to a day where we can celebrate who we are, certainly from an indigenous perspective, but not just for indigenous people; this is for Canada.
My name is Kluane Adamek and I'm from the Dakl'aweidi (Killerwhale) Clan. I'm a Yukon regional chief, and I've been serving in this capacity since last January. It is so important that members of this committee not only represent interests of your constituencies, but also bring voice and leadership to the commitment that has been made not solely by this Prime Minister. Of course, we know that the relationship with indigenous people as he describes it is the most important but this is 40, 50, 60, 100, 200 years in the making.
There's no question that supporting and ensuring that Canadians across this country have the opportunity to have a day of celebration with us to celebrate who we are on June 21 is incredibly important. We know that TRC calls to action identified this, the UN declaration identifies this and we know that through Bill C-262 this has also been identified.
Last year, in 2017, we had June 21 as a holiday in the Yukon Territory; 18 years ago, the Northwest Territories created June 21 as a holiday.
This comes to where we are now. The question isn't why anymore. It's how. How do we get to a place of advancing reconciliation and ensuring that our people are fully acknowledged in this country? This is an opportunity for all Canadians to spend a day to learn. In the Yukon, celebrations are held across the territory, but in particular, at the Adäka Cultural Festival, we welcome visitors. We share who we are. We drum and we sing because that's important. It's an opportunity to learn.
In addition to that, most recently, the national executive, the other regional chiefs, the national chief and I had a conversation about this day. Something for you to consider as a committee would be this. We have to have a day that we celebrate. As is our custom, there are celebrations for us in the Yukon. Our potlatching is alive and well. We know that was taken away from us and it's back and it will never leave.
We must also consider a day to commemorate. The day of commemoration is going to be a different day. This day acknowledges the survivors of residential schools. As we saw floods of orange T-shirts across the country, indigenous and non-indigenous Canadians understand that history. Those of us sitting at this table and my generation, your generation, our grandparents' generation, that shared history wasn't shared. That was taken from all of us. It is about that commemoration and ensuring that those residential school survivors are commemorated on their day, a special day for them.
It doesn't have to be on that same day on which we celebrate. In Israel, for example, they have a day where they acknowledge the history and a day after when they celebrate. This has been done around the world. New Zealand has a day, Waitangi Day on February 6. Canada can be leaders in this.
I feel that opportunity is now more than ever, and I look to our first speaker. I look to our national chief of CAP. I think about the business community, the public sector and the roles they have. I think of all those Canadians and all those kids. It's our responsibility to ensure they really understand the original relationship of this country.
We chose that recognition, understanding who we are, sharing our stories. We know these things, but it's time for action. We know why. It becomes about how.
For the committee, of course June 21 is celebrated right across this country. Solstice in the north is already a holiday. This would be the federal government setting a tone for the rest of the provinces and territories across this country to say this is incredibly important so provinces and territories should stand with us. Stand with the north, which has already take a huge step in this process.
This is also for your consideration: September 30 must also be a day of commemoration. We have to really understand that history, because we know, as our elders have talked about—I think about my grandmother and my father who both went to residential schools—that important history and that specific area of understanding has to be made. It has to be understood. We have to stand in support of those residential school survivors.
Those would be the reflections that I would share with you, committee, and as would, of course, the Assembly of First Nations. There have been many years and many discussions about this by our chiefs, our communities and our people. Whether it's in our communities or whether we are living in urban centres, we have a responsibility. Every single one of us has a part in this journey towards reconciliation.
I would like to be part of that celebration with you when this bill passes and becomes legislation. What we're hearing across the country is there's no cost to reconciliation. You can't put a number on it. Of course, there are going to be financial considerations that have to be made. But wait a minute here, how many other holidays have we had? How many other holidays have we celebrated and not once have we truly celebrated not only the commitment that we have to that relationship with indigenous peoples but the way in which our indigenous peoples, first nations peoples, myself as a Kluane citizen, have contributed to this country, to our economies, to the way in which we do our business? That is very important.
I wanted to thank the committee for the opportunity to join you and to put that challenge of ReconciliACTION out there. It's not a question of why, it's how and when. It's also a question of how we are going to ensure that our residential school survivors are commemorated. We think of Phyllis wearing her orange shirt, showing up so strong that day and having that taken away. This becomes about ensuring that that never happens again.
I would like to thank all of you for the opportunity to join you today. I want to particularly acknowledge my colleague at the Assembly of First Nations, Natasha. This has been a file that she's been working closely on. I know many of the people on your teams who are here today. Certainly for this committee, this is an incredible responsibility that you have. I wish you the best in your deliberations.
Gunalchéesh.
Nika Collison
View Nika Collison Profile
Nika Collison
2018-10-18 11:12
Haw'aa.
[Witness speaks in Haida]
My name is Jisgang. My English name is Nika Collison. I'm the executive director of the Haida Gwaii Museum and co-chair of the Haida Repatriation Committee.
Haw'aa to the House of Commons Standing Committee on Canadian Heritage.
Haw'aa to Mr. Bill Casey for his vision and to all who have done a great amount of work on Bill C-391.
I would also like to take a moment to thank and recognize Mr. Saganash for his work on Bill C-262.
At the second reading of Bill C-391, Mr. Casey stated that he is open to anything that will make the bill better. I appreciate this opportunity to provide insight into Haida repatriation experiences and respond to the bill as it sits right now.
As museum professionals and human beings, we carry the responsibility to effect societal change by mainstreaming Canada's dark history with indigenous peoples while actively working to set things right.
In the indigenous and mainstream museum world, the path toward reconciliation has been shaped by what my Haida Nation calls Yahguudangang, the act of paying respect. The Haida Nation sees this work, more commonly known as repatriation, as based upon mutual respect, co-operation and trust. Yahguudangang has brought a new depth to our nation's healing and our ability to heal with others. It provides opportunity for western museums to become voluntary agents of change rather than the physical evidence of Canada's genocide against first peoples.
Saahlinda Naay, Savings Things House, also known as the Haida Gwaii Museum, is the result of one of the earliest acts of making things right—or reconciliation—in the museum world. It was a vision of both the Haida citizens and Canadian friends residing on our islands that brought this place into being, which opened in 1976. In 2007, we opened the Haida Heritage Centre, which expanded our museum. It was created for our people but also created to share. This is our gift to the world.
Since most of our treasures left Haida Gwaii during the height of colonial regimes, our museum didn't have much of a collection to begin with, but Haida and settler families generously donated Haida heirlooms. The Royal British Columbia Museum, under the lead of then curator Peter McNair, showed support by returning some monumental poles for our museum's opening. This quiet act of repatriation is probably the earliest in Canada. It was not required by law or policy. This act was done because of the humanity this one person brought to our table.
The Haida Gwaii Museum has since grown to include a considerable collection of treasures, mostly gained from private donations, purchases and long-term loans, as opposed to museum repatriation. We also present new works, as we are a living culture. We are not simply an institution. We are a part of the institution that makes up today's Haida society and the greater Canadian society.
In the mid-1990s, the repatriation of ancestral remains became a primary focus of our people. To date, over 500 of our ancestors have been brought home from museums and private individuals from across North America, and one from the U.K. This work has taken over 20 years and well over a million dollars in cash, sweat labour and in-kind donations.
When we visit these museums to bring our ancestors home, we also visit our cultural treasures and other containers of knowledge, such as archives. We bring the diaspora of our people's lives home through imagery, audio recordings, collection notes and the recreation of pieces, and through the physical, emotional and spiritual connections that forever bind us. A few times, family heirlooms have come home from these museums. We are now ready to bring more home.
Around the same time that we began to focus on our ancestors, the 1992 “Task Force Report on Museums and First Peoples” came out. This report has had a very important influence on relationships between indigenous people and mainstream museums, but it's the past four decades of knocking on doors, patience and relationship-building by our people that have been pivotal in having the Haida world and the museum world come together to make things right.
NAGPRA, the Native American Graves Protection and Repatriation Act of the United States, has played an important role there and, in a roundabout way, for us as well. The first cross-border repatriation of one of our ancestors was spurred by NAGPRA. Legally, the museum was not required to work with us because we are not a federally recognized U.S. tribe, but they wanted to see our relative come home. When we contacted the next couple of U.S. museums, they wanted to repatriate through our Alaskan relatives in order to align their process with NAGPRA, but these ancestors came from Haida Gwaii, and eventually the museums agreed.
England is far behind Canada in repatriation, with many mechanisms—or lack of mechanisms, depending on the situation—to prohibit such work. Despite this, through relationship-building and a lot of other hard work, we were able to bring home an ancestor from the Pitt Rivers Museum in 2010. The British Museum has changed its act to allow for repatriation of human remains, and we will be bringing home an ancestor from there imminently.
What we found in working in Yahguudangang is that you can instil a policy and/or laws around repatriation, but true Yahguudangang, or repatriation and reconciliation, is not fully achieved without respectful, genuine nation-to-nation relationship-building. We want people to want to give our relatives back and to see our treasures come home. We want people to want to make things right, and want to find a way forward together, not because they have to. Repatriation is the most important work I've been involved in around the work of reconciliation. The work is beyond monumental. It costs time and healing, and it involves everyone in our nation and our friends.
I'm worried about running out of time, so just give me a second here.
View Rachel Blaney Profile
NDP (BC)
I want to take this opportunity to thank all the members who are here today and the staff who are here to support us. Also, I thank you, Madam Chair, and the clerk for making sure that the response to this request happened so rapidly.
Finally, I would like to thank MP McLeod for her motion.
The request was urgent and it's a very important one. I'm here to speak in support of this motion.
In our last session, my colleague Mr. Saganash had his Bill C-262 pass in the House of Commons. This bill really provides the understanding that moving forward we need to have a framework for all legislation and that the action coming from that legislation must be in accordance with the UN Declaration on the Rights of Indigenous Peoples. That bill was an important one and one that many Canadians are wondering if this government will actually ever put into practice.
The Federal Court of Appeal's decision has brought to the forefront what indigenous communities and the NDP have been saying: the consultation for the Trans Mountain expansion has not been done properly. Sadly, this was a major factor in the last election. People were voicing their serious concerns that the then Conservative government was not addressing the real environmental impacts; nor were they consulting meaningfully with indigenous communities. Their failed process was again revealed in the Northern Gateway decision.
I am speaking on this motion.
Both the NDP and the Liberals ran on a message of addressing the environmental issues and creating a new process that this project, the Trans Mountain pipeline expansion, would go through. This was a direct promise from Prime Minister Trudeau. The Federal Court of Appeal decision is now another fact on a long list of broken promises that this government has had.
I hope the people in this room have read the decision, or, at the very least, closely reviewed the clear indications of the poor consultation process with indigenous communities. This report outlines the reality that the consultation process with indigenous communities was simply bureaucrats going out to listen to concerns and relay those concerns back to cabinet. The decision confirms very clearly that good faith is required on both sides in the consultation process. It is not good faith to send note-takers. The decision was very clear that the phase III consultation process was unacceptably flawed.
To quote directly:
To summarize my reasons for this conclusion, Canada was required to do more than receive and understand the concerns of the Indigenous applicants. Canada was required to engage in a considered, meaningful two-way dialogue. Canada's ability to do so was constrained by the manner in which its representatives on the Crown consultation team implemented their mandate. For the most part, Canada's representatives limited their mandate to listening to and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision-makers. On the whole, the record does not disclose responsive, considered and meaningful dialogue coming back from Canada in response to the concerns expressed by the Indigenous applicants.
Simply put, they were note-takers. There was no attempt to take and address the concerns. In fact, the crown consultation team and the government mistakenly thought that they could not add any more conditions to Kinder Morgan than the NEB had done. In this context, many, including me, ask why we would bother consulting anyway. Where is the commitment to the government's constitutional duty to address indigenous rights? Where is this government's commitment to dedicating itself to what it claims is the government's most important relationship? To be clear, there is a constitutional duty to consult with indigenous communities. This was not clearly recognized and the process was fundamentally flawed due to this. Canada may disagree and want to see it differently but the decision says this very frankly.
While Canada submits that the members of the crown consultation team were not mere note-takers, the preponderance of evidence is to the effect that the members of the crown consultation team acted on that basis alone. For the most part, their role was that of note-takers who were accurately reporting the concerns of the indigenous applicants to the decision-makers.
Too many times I've heard from indigenous leaders in my riding and across the country that they are tired of talking to people who are not decision-makers.
Simply put, this is not consultation, as the decision explains:
The Indigenous applicants were entitled to a dialogue that demonstrated that Canada not only heard but also gave serious consideration to the specific and real concerns the Indigenous applicants put to Canada, gave serious consideration to proposed accommodation measures, and explained how the concerns of the Indigenous applicants impacted Canada's decision to approve the Project.
We have heard repeatedly from indigenous communities that there is no serious consideration of their concerns. That is why we are here today. It's because this government's promise of meaningful consultation has been proven repeatedly to be a broken promise.
Whenever I contemplate consultation, I think of free, prior, and informed consent. Grand Chief Ed John said it best to this committee not too long ago. Speaking to the UN Declaration on the Rights of Indigenous Peoples, he said:
I think there's a misconstruction of the concept of free, prior, and informed consent....Consent at the end of the day is a decision that's made after a process, so governments go through a process to come to some decision. First nations' governments are in that same place. First nations' governments will look at information ahead of time. They should be free from any coercion. It should be prior to decisions being made. There should be extensive consideration. It may require an environmental assessment process or some other process that would help inform the decision-making process. Free, prior, and informed consent essentially, at its core, is about governments making decisions. When the Province of British Columbia, the provinces, the national government, the territorial governments, or municipal governments are making decisions, that's what they're doing.
The fact is that this committee has a duty to have a robust study on why the consultation process was so flawed. What are the barriers that seem to hinder both Conservative and Liberal governments to meaningfully consult with indigenous communities? Canadians want certainty. They want respectful relationships to be built. Indigenous communities want to be respectfully treated and for their rights and opportunities to be as important as all Canadians'.
The decision outlines some very specific examples of the lack of this consultation process happening. Coldwater, for one, wanted the pipeline to take an alternate route that would avoid their aquifer. That is a significant concern for their community, and really, it would be for any community in Canada.
I will read directly from the report:
After Coldwater expressed its strong preference for the West Alternative Canada’s representatives responded that: [t]his issue is one which is very detailed, and will need to be recorded carefully and accurately in the Crown consultation Report. The Crown consultation report can highlight that project routing is a central issue for Coldwater.
At a consultation meeting held on October 7, 2016, again in the context of discussions about Coldwater’s aquifer, one of Canada’s representatives:…acknowledged that the aquifer hasn’t been fully explored, but explained that the [Board] process has analysed the Project and that the Crown will not be taking an independent analysis beyond that....The Crown (federally and provincially) will not undertake an independent analysis of potential corridor routes. That said, the Crown will take Coldwater’s concerns back to decision makers.…Coldwater asked what the point of consultation was if all that was coming from the Crown was a summary report to the [Governor in Council].
In the later stages of the meeting during a discussion...Coldwater stated that based on the discussion with the Crown to date it did not seem likely that there would be a re-analysis of the West Alternative or any of the additional analysis Coldwater had asked for. Canada’s representatives responded that: [The Crown’s] position is that the detailed route hearing process and Condition 39 provide avenues to consider alternative routes, however the Crown is not currently considering alternative routes because the [Board] concluded that the applied for pipeline corridor is satisfactory. The Crown will ensure that Coldwater’s concerns about the route are provided to the Cabinet, it will then be up to Cabinet to decide if those concerns warrant reconsideration of the current route.
The Stó:lo Nation reached out to the Minister of Natural Resources about the crown consultation report to share their concern that the Canadian representative left them to believe that the report to the Governor in Council “will be a summary” of what is being heard during its consultations with aboriginal people “with some commentary”.
It states:
The Stó:lo went on to observe that “[a] high level of consultation means more than simply gathering information on aboriginal interests, cross checking those with the Terms and Conditions of the project and reporting those findings to the federal decision-maker.” And that “[a] simple ‘what we heard’ report is inadequate to this task and the Governor-in-Council must be aware of its obligation to either reject or make changes to the project to protect and preserve the aboriginal rights, title and interests of the Stó:lo Collective.”
This statement clearly indicates the reality that a meaningful consultation process was not happening. Not only that, but the minister was clearly made aware of the process and the reality that it was not working. May I remind this committee of how many other cases this decision mentions and refers to. This is the legal system of Canada, which has outlined repeatedly the court decisions of this land on the process of consultation with indigenous communities. Canadians deserve to know why this has not been reviewed by this government and why we are here again.
The Upper Nicola's legal counsel clearly rang the bell on May 3, 2016, in a meeting:
Upper Nicola’s legal counsel responded that “the old consultation paradigm, where the Crown’s officials meets with Aboriginal groups to hear from them their perspectives and then to report this information to decision makers, is no longer valid.”
The Government of Canada cannot say they are surprised to be here. It is very clear from these examples, from the continuous engagement of multiple indigenous communities providing clear feedback, that this consultation process was not a consultation at all.
Another example comes from Mr. George, director of the Tsleil-Waututh treaty, lands, and resources department:
He affirmed that at a meeting held with representatives of Canada on October 21, 2016, to discuss Tsleil-Waututh’s view that the Board’s process was flawed such that the Governor in Council could not rely on its report and recommendations: Canada expressed that it was extremely reluctant to discuss the fundamental flaws that [Tsleil-Waututh] alleged were present in relation to the [Board] process, and even prior to the meeting suggested that we might simply need to “agree to disagree” on all of those issues. In our view Canada had already determined that it was not willing to take any steps to address the issues that [Tsleil-Waututh] identified and submitted constituted deficiencies in the [Board] process....
These are very good examples of why this process needs to be studied in this place. In fact, it could not be clearer, as the decision says:
Meaningful dialogue required someone representing Canada empowered to do more than take notes—someone able to respond meaningfully to the applicants’ concerns at some point in time.
The exchanges with the applicants demonstrate that this was missing from the consultation process. The exchanges show little to facilitate consultation and show how the Phase III consultation fell short of the mark.
Madam Chair, let me confirm that these are just a few of the examples from the substantial decision. It makes it clear that the consultation process was not considered thoughtfully and was rushed.
After the report came out, I was disappointed to hear the Prime Minister and the Minister of Finance continue with their lines. The Prime Minister in a radio interview downplayed the idea of appealing the important decision that has been brought before us here today. He said, “The court was very clear: You need to do more on the environment. You need to do more on consultations, if anything is...to happen, so that's what we are going to do.” Soon after, when asked about the appeal again, he said, “We are looking at what an appeal would look like [and] what it would mean.”
Which one is it? Indigenous communities deserve to know. When any Canadian hears or reads these examples of consultation, I believe they will see how empty this government's promises are. Who would not be frustrated in that seat to hear repeatedly that we will take your concerns to decision-makers, but no one will really talk to you about any accommodations or have any meaningful discussion about why it might be important to protect your rights—for example, your water supply?
Now Canadians are going to own the Trans Mountain pipeline. In fact, right after the decision came out, over 99% of the shareholders of Kinder Morgan voted “yes” to sell to Canada. Of course they did. They saw this decision and they are receiving more money than the pipeline is worth. Many Canadians and many indigenous communities are wondering when their vote will happen.
What does the finance minister say? I quote:
As we move ahead with the project and the purchase, our government remains committed to ensuring the project proceeds in a manner that protects the public interest. That means ensuring the highest level over governance — including environmental protection. It means upholding our commitments with Indigenous peoples and it means responsibly protecting Canada’s and Canadians’ investment.
How do indigenous communities have any faith in a consultation process with this government owning and clearly stating that this project has only one outcome? How can Canadians have any faith that the environment and the relationship with indigenous people will be done well after looking at this report? How do they have faith in a government that buys a pipeline and leaves the taxpayer on the hook? The government knows what proper consultation is. There are many examples of successful consultation in this country. It does require that the government do the work. What it means is that the government must have a two-way exchange, a real discussion, not just a place for indigenous communities to let off steam but to be part of a process in a meaningful way.
I am hoping to not have this happen but I am expecting to have to listen to the Liberals speak now and blame the Conservatives. I agree with them. The Conservative process was very flawed. We saw what the results were during their time in government. However, once the Trudeau government was elected, it was this Prime Minister and this government who moved forward with the same flawed process, resulting in the decision I have before me.
Now there is $4.5 billion invested in a project that the Federal Court of Appeal has stopped. In no way does a climate change leader invest this type of money in an old pipeline. In no way does a Prime Minister believe the most important relationship is with the indigenous people of Canada when the consultation process is so completely flawed.
I live on the Salish Sea. It is my home and I am very proud of the beauty of it. It provides for many of the communities I serve: with jobs, recreation, sustenance, and obviously, complete wonder. I serve that region and I'm mystified by the lack of understanding that this government has for the need to protect it. I think it is important to also address the fact that the Conservatives like to throw out the word "veto" when talking about indigenous consultation. This is a non-starter that shuts down discussion about consultation and brings fear of indigenous communities participating fully within Canada. It is not about veto. Like Grand Chief John said in the quote I mentioned above, it is about being an active part of the process and being a part of the decision-making.
I will support the Conservative motion, although I do have my own motion that I'm hoping will help us along this journey because I feel that in this committee what we really need to be focusing on is the process of consultation that's happening in this country. It is time that this committee be strong and recognize that we can do a study that will provide some real direction for the future of this country.
I hope that all the people at this table would agree that it is certainly time for this issue to be moved into a reality that benefits everyone in this country. Indigenous communities have simply waited much too long.
Thank you, Madam Chair.
View Rachel Blaney Profile
NDP (BC)
Thank you, Madam Chair.
Thank you so much for being here.
I'm going to start with you, Chief Bellegarde, if that's all right.
I want to thank you, first of all, for bringing up my colleague's bill, Bill C-262, on UNDRIP. I think it's a fundamental principle that we need to be looking at.
One of the things I find very interesting about what you're telling us today is exactly what we should be moving forward in, which is changing the process in Canada because of the wisdom of the indigenous people who were here in the first place. It's that sort of changing process, and understanding that free, prior, and informed consent is a lot broader than just on energy processes.
One of the things you talked about really clearly here is that we have a framework where the policies are just piled on top of each other and they're not functioning at all. Yet you have applied a lot of wisdom and knowledge in figuring out how to bring these multi-jurisdictional areas together through your hospitals. Could you tell us a bit about what you could share with the federal government around that expertise?
View Dan Vandal Profile
Lib. (MB)
Thank you.
Bill C-262, related to UNDRIP, is weaving its way through the parliamentary process. Can you perhaps offer some thoughts on how that bill will intertwine with or relate to the rights framework you just talked about?
View Carolyn Bennett Profile
Lib. (ON)
Thank you for the question, because I think that's the other piece we've been hearing from coast to coast to coast, that the UN Declaration on the Rights of Indigenous Peoples needs to be a foundation of the legal framework. But it means you have to read every article. As we learned at the child welfare summit, forcibly removing children from their families and their culture is not in keeping with the UN Declaration on the Rights of Indigenous Peoples. As we build the legal framework, we need to build the mechanisms that will allow us to honour all of those articles.
There are many people who say, you know, volume 2 of the royal commission wrote it all out; why don't you get on with that? There are some parts of the Truth and Reconciliation Commission's calls to action that need to be in this, but basically it's saying that section 35 rights need to be honoured in the way that UNDRIP explained.
View Gary Anandasangaree Profile
Lib. (ON)
Thank you.
Madam Minister, I apologize for that. I know we're short on time now.
Can we talk about UNDRIP? I know that Bill C-262 will be debated today for the third hour. One difficulty we have is that two major parties are supporting it; our government's supporting it. It would be a good sign if we had all three major parties supporting this legislation. I'm wondering what you have to say to the Conservatives on this, because I think this is the time to set the history right.
View Carolyn Bennett Profile
Lib. (ON)
Right. I think what I have to say is what I said at the UN a year and a half ago. It's not scary. The UN Declaration on the Rights of Indigenous Peoples is the way forward in the original understanding of peace, harmony, and a balance of interests. How you achieve consensus is by having indigenous rights holders involved at the very idea of a project, and then have them be part of every stage of that project. As we found with Kinder Morgan, even communities who objected to the project to begin with are very interested in being part of monitoring the project and being part later on. Again, it's the kind of idea that happens in Nunavut, where good projects are accepted early on and bad projects are rejected, where mining companies come to understand the certainty that comes with doing a better job persuading those land use planning boards of the value of the balance of the economy and the environment.
View MaryAnn Mihychuk Profile
Lib. (MB)
I call the meeting to order.
We are here at the indigenous and northern affairs committee. We are at the conclusion of studying a bill that relates to the United Nations declaration. It's Bill C-262, an act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.
Before we start, we always recognize the fact that we are on the unceded territory of the Algonquin people. It's particularly important because Canada, and all Canadians really, have started to talk, finally, in earnestness about the truth of our history and moving forward on reconciliation.
To that end, we have important work to do on this private member's bill.
Are we ready to go to clause-by-clause?
Pursuant to Standing Order 75(1), the consideration of clause 1, the short title, and the preamble is postponed until the chair calls clause 2.
Shall clause 2 carry?
View MaryAnn Mihychuk Profile
Lib. (MB)
Shall the short title carry?
Some hon. members: Agreed.
The Chair: Shall the schedule carry?
Some hon. members: Agreed.
The Chair: Shall the preamble carry?
Some hon. members: Agreed.
An hon. member: On division.
The Chair: Shall the title carry?
Some hon. members: Agreed.
An hon. member: On division.
The Chair: Shall the bill carry?
View Cathy McLeod Profile
CPC (BC)
Madam Chair, I will be asking for a recorded vote on this one.
As you know, throughout the testimony from various witnesses we consistently asked for things like a definition of “consent”. I still do not believe that we are comfortable with what “consent” means. I still believe there are significant issues especially around something like article 19, in terms of laws of general application, and how you will actually determine the vast array of people whom the government will need to move forward with, in terms of that conversation. I believe the government is setting itself up to fetter its ability to move forward in terms of general laws of application.
I want to say right upfront supporting the UN declaration is a very different issue from supporting Bill C-262. We see those as two separate things. Until we have these important questions answered, we are not comfortable with Bill C-262.
View MaryAnn Mihychuk Profile
Lib. (MB)
Shall the chair report the bill to the House?
An hon. member: On division.
The Chair: And that's it. We're adjourned—and such a beautiful day.
View MaryAnn Mihychuk Profile
Lib. (MB)
We are waiting for one more member, but we don't want to keep our presenters waiting.
We are here to discuss the United Nations declaration. It is Bill C-262, an act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.
Cathy?
View Gary Anandasangaree Profile
Lib. (ON)
Madam Chair, we will never get consensus on this, but there is a general sense of where FPIC stands vis-à-vis Bill C-262.
In our study we had a plan, and we're more or less coming to the end of that plan. It's almost disingenuous to bring this up at this stage. I think we're comfortable going ahead, and I don't think we need to suspend at all.
View MaryAnn Mihychuk Profile
Lib. (MB)
Shall we call the vote on a suspension of the study?
(Motion negatived)
The Chair: We're going to move now to our presenters. As I was saying, we're hearing opinions from the public on UNDRIP and private member's Bill C-262.
Those of us in Ottawa are on the unceded territory of the Algonquin people.
We have with us on video conference John Borrows, who is calling in from Victoria. Welcome. We can see you on the screen.
When we get to the question period, I'd urge you to identify who the question is for.
Without holding up the hearings any more, I will call on the Specific Claims Tribunal Canada, whose people are here with us, and I have them as leading off with their presentation.
You have up to 10 minutes. I'll try to give you subtle hints about our time, and then they become less subtle as we get closer to the end. Welcome to our committee.
Harry Slade
View Harry Slade Profile
Harry Slade
2018-05-03 15:36
I've had the experience.
Thank you, Madam Chairperson, and honourable members for this opportunity to speak on Bill C-262.
I am a justice of the B.C. Supreme Court, and since 2009, chairperson of the Specific Claims Tribunal Canada. The latter is an independent tribunal with a mandate to adjudicate certain categories of historical claims of what are described in the act as “first nations”. These arose primarily during the period from the early days of colonization up until as recently as 15 years ago.
The tribunal has no jurisdiction in relation to claims arising around indigenous rights; in other words, section 35 claims.
My comments are not proffered as opinions on any question of law, or a preference on any matter of political controversy. They're personal, and informed by my experience as a lawyer representing indigenous groups from the late 1970s until my appointment to the court in 2001 and as a long-time observer of events in the context of indigenous crown relations. Here there a lesson from my work to establish the processes of the tribunal and adjudicate claims before it.
I should mention also that I am somewhat informed by my spouse Dee, a Tsimshian from the north coast of British Columbia, whom I must obey.
Some hon. members: Oh, oh!
Mr. Justice Harry Slade: My presentation is an attempt to describe in neutral language, and based only on conclusive findings of the Supreme Court of Canada, the prevailing legal context in which we see the bill introduced.
I'd like to identify questions about the intended effect of the bill with respect to the indigenous rights set out in the declaration, and to make an observation or two about the direction provided by the Supreme Court with respect to contemporary treaty-making and any correspondence it may have with article 27 of the declaration. It calls on states to “establish and implement...a fair, independent, impartial, open and transparent process...to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources”.
By the way, I do have a paper. I don't think it's been circulated yet, but you can read it if you're inclined at your leisure.
Article 26 states:
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership....
Of course, there is also article 32, which provides that states shall consult with indigenous peoples “in order to obtain their free and informed consent prior to the approval of any project affecting the lands or territories”.
There is quite a bit of public chatter about what all of that means. We see people in the media who assert that FPIC is an absolute. Others suggest that it would not displace the common law, which provides for consent where aboriginal title is established subject to the crown being able to establish justification for infringement.
What has the Supreme Court said? In Tsilhqot'in, where aboriginal title to land has been established by court declaration or agreement—and I emphasize those two things—the crown must seek consent. Absent consent, development of title land cannot proceed unless the crown has discharged its duty to consult and can justify the intrusion.
Where aboriginal title has not been established, the crown owes duties of consultation and accommodation. We often see this in the courts in applications for judicial review, where the indigenous nation claimant must establish a prima facie case for title, and the degree of consultation and accommodation will depend on the apparent strength of that claim. Throughout, according to Tsilhqot'in, the onus for proof of title was found to be on the applicant or on the asserting nation claimant.
The government website sets out its principles respecting the Government of Canada's relationship with aboriginal peoples, as of February 14, 2018, a week after which the bill cleared second reading and was referred to committee. I'm not going to go through those 10 principles, but they are in my paper.
I think it's evident from the principles—the explanatory text with the principles and the speech by the minister, the Honourable Jody Wilson-Raybould, which I referred to in the paper—that the government seeks to identify the indigenous nations for purposes of advancing the nation-to-nation relationship with Canada; identify the territories of the indigenous nations; and to recognize the indigenous nations and territories by, at the least, requiring federal regulatory agencies responsible for project approvals to seek consent where the project under review may infringe, including consent respecting land for which title has not been established by court declaration or treaty. This is a departure from the common laws found by the Supreme Court of Canada.
As article 26 of the declaration asserts that indigenous peoples have the right to the lands, territories, and resources—what they've traditionally owned—certain steps have to be taken, in my view, to give effect to the provisions of the bill. That would include government at some point identifying the indigenous peoples as distinct polities that may be considered indigenous nations, and at some point identifying the lands traditionally used.
This brings me to questions that parliamentarians may wish to consider in their deliberations, and if I could prevail upon Madam Chairperson to give me an extra couple of minutes, I'll get through these quickly.
Harry Slade
View Harry Slade Profile
Harry Slade
2018-05-03 15:44
First, does the bill obligate the government to introduce legislation purporting to fully establish in law the title of indigenous nations to historically occupied lands?
Second, does it matter in the implementation of the promise of the bill whether or not a recognized indigenous group can meet the evidentiary burden, as found in Tsilhqot'in, for proof of title?
Third, does implementation of the declaration, as contemplated by the bill, establish a third means, in addition to or as alternative to the requirement of common law for a court declaration or treaty, by which aboriginal title may be exercised as present ownership and possession of land?
If so, would unilateral action resulting in recognition of the ownership of land identified by government, as owned in both fact and law by identified indigenous nations, alter the balance needed to reconcile the interests that sustain the reality, as stated in Tsilhqot'in, that aboriginal and non-aboriginal people are all here to stay?
I'll close with an observation that the declaration, and apparently the bill and the decisions of the courts, have all addressed the means by which we get to reconciliation, and the court has described it as treaty-making.
This raises the question for me whether Canada has a viable and transparent process through which all proper participants may pursue negotiation of treaties that reflect the reality that we are all here to stay. It doesn't.
Mary Ellen Turpel-Lafond
View Mary Ellen Turpel-Lafond Profile
Mary Ellen Turpel-Lafond
2018-05-03 15:46
Thank you, and good afternoon, everyone.
I just want to identify the position that I now hold to give you some context for my remarks. I am a professor of law at Allard Hall Law School at the University of British Columbia, and I am the director of the Indian Residential School Centre for History and Dialogue. In my background, I had 20 years as a judge in Saskatchewan, and 10 years as a child advocate in British Columbia, and I was a law professor before that.
I come to the committee today first of all acknowledging that we are on Algonquin territory.
It's a great honour to be here.
Out of respect to the committee, I have had a chance to follow your proceedings and to read them. I had a chance to attend and listen as well, so I'm not going to cover ground that's already been covered. You've held extensive hearings and have received a great deal of evidence, so I'm not going to go into a lot of arcane legal issues, although I want to be available to answer any questions you might have, either in session or, more generally, to be helpful.
My perspective is really as an indigenous person but also as a constitutional scholar, as a judge, and as an individual who works very closely with addressing the legacy of residential schools and supporting reconciliation to be effective. It's also from a very pragmatic viewpoint, since I have dealt with, just in the child welfare area, 17,000 cases and have worked extensively with indigenous children and families and trying to address some of the more structural issues.
From that perspective, I want to make one general comment and a few small comments, but I'm probably going to use less time.
My general comment is that the fundamental transformation that UNDRIP brought 10 years ago was 10 years ago, but it was very significant and has become very settled. It's widely accepted. It's used extensively by indigenous people and non-indigenous people, and it's extremely helpful. I see UNDRIP, at the most fundamental level, as recognizing indigenous rights as human rights. I believe that Bill C-262 will assist us to come closer to the point of being able to have genuine reconciliation. It's extremely positive. I don't see it as any way disruptive or threatening, knowing what I do about constitutional law, history, and how courts deal with matters. Our Constitution is based on peace, order, and good government. There are specific provisions in UNDRIP itself. All human rights have limits. It is not a radical, disruptive measure to adopt UNDRIP. It's, in fact, an incredibly helpful tool.
I will just say that in my practical work with children and families, as many of you will know, there have been some very significant rulings of the Canadian Human Rights Tribunal dealing with indigenous children and disparities in funding. These matters are being actively worked on. The Canadian Human Rights Tribunal, when it issued its fourth compliance order this year, specifically looked to the language of UNDRIP as being helpful in dealing with issues for children and families.
I bring that to you because I appreciate that not everyone works closely with these intergenerational issues of residential school survivors, and they don't always appreciate that it didn't end when the residential schools ended. The grossly disproportional number of indigenous children in care, the need for indigenous families to be heard and understood, and the need to have reconciliation in our provinces and our territories will be very positively impacted by federal adoption and support for UNDRIP at the highest level in legislation.
In its most recent compliance order—which I'm not going to read—the Canadian Human Rights Commission has two paragraphs, paragraphs 75 and 76, that adopt UNDRIP as an interpretive value to understanding what's going on with indigenous children and families. In particular, it talks about the fact that children have the right to be free from discrimination—highlighting articles 2, 7, and 22 of UNDRIP and, more importantly, article 8 and how we have to understand that forced assimilation doesn't work. Indeed, the doctrines of superiority that were part of the residential school process—and part, frankly, of the child welfare process, where indigenous families are judged and assessed as being inferior, and their children are easily removed—made it very challenging in Canada to be able to push back and have a more respectful space for those families. I say this as a person who has dealt with 17,000 child welfare cases as a child advocate.
What UNDRIP does is that it provide an interpretive lens that helps us to have a conversation and to understand what's happening, such as the forceful removal of children and the systemic issues. It is not a disruptive, unhelpful thing. It's extremely helpful, and it will be received in a legal context that is methodical, plodding, and clearly about limits and reasonableness.
I really am happy to answer any questions. I have noted in reviewing the proceedings to date and following the questions that there seems to be some difficulty, wherein people accept UNDRIP but have difficulty accepting that it should be in legislation. I certainly am of the view that there's no difference between accepting UNDRIP and the context of what the bill says within itself as legislation. It really is a seamless process; it presents no terrible threat.
I have also followed your discussions on FPIC. In the same context, I would say to you that I heard former attorney general Geoff Plant—a very experienced individual—say the other day that it's part of civil society to work together. It's part of civil society to engage.
Unfortunately, we haven't had the best terms of engagement. I note, however, from the Saskatchewan viewpoint, taking treaty land entitlement as an example, that when people do engage and work together, it's not just a matter of consent, but there are huge successes that occur. I've seen this happen, and it doesn't matter whether it's a Conservative, a Liberal, or an NDP government, or what have you.
I urge you to take a generous and appropriate approach to this bill, because it's a tool that will be immensely helpful even in provincial and territorial systems. It is not a threatening or menacing matter. I do not feel that we have to have the Oxford University approach whereby we define every problem and issue.
There are 600-plus first nations in Canada. They have the capacity to engage in self-determination and move forward. It will be a slow, methodical process, but it's one that will be aided by a positive respect for human rights, and it is part of responding to the legacy of residential schools.
I'm happy to answer questions. I want to end before my time to prove a point, and I don't want to repeat anything you've already heard.
I have high regard and respect for the work of this committee, but I want to tell you that there are many people on the ground—children and families—who rely on UNDRIP and its fundamental concepts to give meaning, inspiration, and affirmation that their human rights are taken very seriously in Canada.
John Borrows
View John Borrows Profile
John Borrows
2018-05-03 15:54
Good afternoon, everyone.
I'm thankful for the opportunity to be here today. I want to speak in the language of this territory, just to introduce myself.
[Witness speaks in Anishinaabemowin]
I just introduced myself as being from the Cape Croker Indian Reserve on the shores of Georgian Bay, in Ontario. I'm of the Otter Clan, and my name is Kegedonce.
I'm the Canada Research Chair of Indigenous Law at the University of Victoria Law School, and I've been teaching for 25 years. We've recently received approval from the British Columbia government to go ahead and fund a joint degree in indigenous law and the common law, and so we will be teaching these legal systems together just as at McGill they teach common law and civil law together.
In talking about this bill today, I want to stress two points. It's principles-driven and process-oriented, and I think the principles are worth rehearsing and the process is worth emphasizing.
The principles are that this is about democracy and participation and about people working together in this framework of human rights. The principles are very much constitutionally sound and driven and consistent with the constitution, including the role of indigenous peoples in participating in their own communities and with other governments in defining opportunities and challenges that they're facing.
These principles are also well chronicled in the Truth and Reconciliation Commission, to which this bill makes reference in the preamble. These principles are directed to addressing the injustices that are historic and current across our country. As you know, 64% of the children in care in British Columbia are indigenous. Twenty-eight per cent of the prison population of Canada is indigenous, as examples of the contemporary injustices that are part of our system.
I do want to make the point, though, that part of the principles of this bill are limitations on governments, indigenous and Canadian. For instance, there has been a recent controversy in Quebec and the Kahnawà:ke reserve about the marry-out get-out laws.
Those laws, under this bill, if they were to be articulated, would have to account for article 9 of UNDRIP, which says that indigenous peoples have the right to belong, in accordance with the traditions and customs of their people, but that no discrimination of any kind may arise from the operation of this act.
The point I'm making here is that UNDRIP will not apply just to Canadian governments. UNDRIP will also apply to indigenous peoples themselves. So whenever indigenous peoples operate within this document, they themselves will be receiving and obligated to follow the same kind of human rights concerns that are part of the United Nations, part of Canadian law, and indeed, part of their own legal traditions, because it is the case that there are many different points of view within indigenous law, and there are ways of working through those conflicts that are respectful of human rights.
I want to make the point that this is repeated over and over again in the document. So yes, we will be expecting, if this bill becomes law, that indigenous peoples will be protected from state incursions in relation to life, liberty, security, labour, housing, health, education, media, religion, spiritual practices, land, community membership, etc. But I also want to emphasize the point that indigenous peoples will also have to pick up this document and use the same human rights concerns within their legal traditions to respect life, liberty, security, labour, housing, health, education, media, religion, spirituality, land, etc. This is a very important contribution to the rule of law in this country. Anishinabe law, Blackfoot law, Salish law, Mi'kmaq law, and Honeshonee law all have human rights traditions, and these traditions will be enabled to flourish as a result of the implementation of this bill.
Now let me make the other point about article 46 of the declaration, which says that nothing in this bill can be construed to dismember the territorial integrity or the political sovereignty of the nation state of Canada.
There are definite limits on indigenous peoples as this right is being exercised. Likewise, article 46.2 says:
The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law...in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect [of] the rights and freedoms of others and for meeting the just and...compelling requirements of a democratic society.
The point to make here is that no rights are absolute in our country and this document does not change that point. It's also to make the point, though, that the crown's opportunities are also constrained. When subsection 35(1) was passed, it represented a constraint on the sovereignty of the crown. Just as the charter is a constraint on the sovereignty of the crown when it comes to individuals, so are aboriginal and treaty rights a constraint on the sovereignty of the crown when it comes to indigenous peoples.
The point I'm making here is that it's not just for this committee alone, or this chamber alone, to be able to determine what the rights and obligations are under our charter or our aboriginal rights or this declaration. The framework is that we are all limited and we—here's the principle—through consultation and co-operation will create a national action plan that is a process-oriented, continuing conversation about how we harmonize these opportunities together. We would then report to Parliament frequently to determine how our progress is happening along that front.
The framework for subsection 35(1) is that aboriginal rights are sui generis, meaning they're unique or of their own kind. The Supreme Court of Canada says that a morally and politically defensible conception of aboriginal rights will incorporate both common law perspectives and indigenous perspectives. This bill is very consistent with that constitutional heritage and tradition. It picks up on the limitations that indigenous peoples will have to act within in accordance with the Constitution, in accordance with this bill, which are human rights limitations, as well as giving way from time to time to the right of other Canadians when it's demonstrably justified in a free and democratic society.
Likewise, the crown is also limited. The whole justification test in subsection 35(1) says to the crown that you cannot do just what you want. This goes back to the Glorious Revolution and the Magna Carta, the expectation that our governments are limited and that there are checks and balances on our governments. This document is about those kinds of checks and balances. I think that the process-oriented provisions found in this bill, which are driven by principle, will enable us to work through these democratic debates in a human rights context, in a fashion that allows us to carefully, and with reasonableness through time, ensure that we get the proper balance and the harmonization.
When I think about harmonization, I think about playing a piano. If you put your fingers down on a piano keyboard, you're often pressing different keys. That's what we'll be doing when we try to determine the rights of Parliament, other Canadians, and aboriginal peoples. But it's possible, with harmonization, when you press those keys to get a sound that is resonant. I believe this bill is a part of that resonance that flows from our history, our constitutional traditions, and is directed by what we were called on to do by the Truth and Reconciliation Commission.
[Witness speaks in Anishinaabemowin]
Thank you.
View William Amos Profile
Lib. (QC)
View William Amos Profile
2018-05-03 16:03
Thank you to all of our witnesses today.
It is a treat to have you here. I will disclose to Professor Borrows that I've been a huge fan of his for many years, and this is a great moment to be able to ask you some questions about this bill. I'd like to extend my line of questioning and jump between Bill C-262 and Bill C-69, because there's a very live debate around the incorporation of UNDRIP in that context, and I'm sitting on that standing committee as we consider that bill.
My first question is directed to Professor Turpel-Lafond and Professor Borrows. Bill C-69 has been subject to some criticism for not sufficiently incorporating both UNDRIP and its principles. I will be bringing forward amendments to do just that in the days to come.
I don't presume that you have expertise or knowledge of Bill C-69, but I'm hoping that you do have some understanding. If you take it for granted that we're looking at an impact assessment regime, how should Bill C-262, if enacted, be properly reflected in a bill such as Bill C-69?
I put that to you both, please.
Mary Ellen Turpel-Lafond
View Mary Ellen Turpel-Lafond Profile
Mary Ellen Turpel-Lafond
2018-05-03 16:05
Bill C-262 is a very significant centrepiece and serves as a national project of resetting appropriately the relationship, and reconciliation. Individual pieces of legislation, like the impact assessment legislation, should also have a reference to UNDRIP. It's not a single statutory instrument; it should be referenced there.
I'm also engaged with the chiefs of Canada in looking at legislation on child welfare. Minister Philpott, who spoke to our special chiefs assembly recently, has said that we need to recognize UNDRIP in a future piece of legislation on child welfare.
The acknowledgement and recognition of UNDRIP is a very significant piece of that imprint because it helps us to understand what the deeper issues are. Again, as Professor Borrows has said, it is not disruptive. It's additive to a tradition of trying to appreciate how we got to the places we got to. As a constitutional scholar, I would say that the debate you have heard in this committee about FPIC has been somewhat misrepresented. FPIC is not an absolute right; it is actually understood in a context. When we look at environmental or impact assessment, we are looking at engagement, we are looking at working together, and we are looking at reasonableness and fairness, all of which are aided by UNDRIP.
My respectful view is that Bill C-262 is extremely significant for Canada, but so, too, is a reference to UNDRIP in other statutory instruments, particularly ones that impact aboriginal people directly and for which the crown and members of the House recognize a need for clarity. Just as the Charter of Rights will be recognized, and has been recognized in different ways in policies and law, UNDRIP is a very significant component of setting an understanding.
John Borrows
View John Borrows Profile
John Borrows
2018-05-03 16:07
I agree, and I would add that when legislation is passed by the House, it has an enforcement component to it. I think that we rightly spend a lot of our time thinking through the implications in relation to enforcement, but this legislation also has an educative function. To the extent UNDRIP is mentioned not only in Bill C-262 but also in legislation dealing with environmental assessment, it will help to perform that task of educating the public—those who are involved in and have to live in accordance with the assessment regime—that indeed UNDRIP is live and is a part of that process as well.
Harry Slade
View Harry Slade Profile
Harry Slade
2018-05-03 16:08
Well, I agree with everything that Professors Turpel-Lafond and Borrows have said about positioning UNDRIP in relation to enactments that have some bearing on indigenous interests, including the provisions that go to the social conditions. It clearly is a positive statement, albeit some might say it's unnecessary because Canadian law is such that people should not suffer discrimination based on race. Whether or not that's so, there's plainly a need to address as somewhat unique the particular circumstances of indigenous peoples, having regard for these statistics that you mentioned earlier.
With respect to land, however, it comes down to expectations, it seems to me. I think one would have to have been fast asleep for the last while not to realize that expectations are being formed around ownership of traditional territories and FPIC, which, in my respectful view, require careful attention and clarification. This is not to be negative about it, but it is to signal that expectations need to be addressed as we see them arise.
View Cathy McLeod Profile
CPC (BC)
Thank you to everyone here, especially from my home province of British Columbia.
I hate to be like a dog with a bone on the FPIC issue, but I have to pick up from what we were just saying. If anyone was listening to the AFN in the last few days, there seemed to be a lot of different perspectives about what FPIC and Bill C-262 were going to accomplish.
Some of the witnesses here today have a very clear understanding of what they believe FPIC is, but even my NDP colleagues on TV last week and then in the House today, gave a much broader meaning to FPIC. This is part of the reason I truly believe it's important that the definition be such that, as some of you have indicated, there is a common understanding, or else we will be creating a lot of significant problems down the road.
Justice Slade, would you care to comment on that? We've had three definitions from one witness. We've had everything that's been said in the last few days, and so I think we have an issue with the definition.
Harry Slade
View Harry Slade Profile
Harry Slade
2018-05-03 16:12
I think the emphasis in the declaration is on seeking consent, not requiring consent. Who could contend that this is not a good idea?
Harry Slade
View Harry Slade Profile
Harry Slade
2018-05-03 16:12
I'll never be called upon to adjudicate the matter, so it's probably fairly safe for me to say that it's pretty clear to me, from looking at UNDRIP and the movement toward implementation, whether that be legislative or simply by policy, that Canadian common law is not likely to be disrupted by it.
View Cathy McLeod Profile
CPC (BC)
A legal expert described the bill as quasi-constitutional. Would people agree that this is not a typical piece of legislation, in that it's quasi-constitutional?
I'd like a quick yes or no from all three of you.
John Borrows
View John Borrows Profile
John Borrows
2018-05-03 16:13
I think what happens here is it implements our Constitution, and so in that respect it's connected. Of course, the bill could be changed by a subsequent Parliament, and so it's not constitutional in that regard. Another party might entertain other ways to implement UNDRIP.
In relation to the former question, I think you're right, in that there are going to be differences of opinion around what FPIC means. That is why the process and the principles that guide this legislation are important.
Just as we have a difficult time saying what is equality or life, liberty, security, association, freedom of the press, if we were to wait to define equality, for example, before trying to implement it in legislation, there are so many different views of equality, I don't think we'd ever get there. Likewise with life, liberty, or security.
What this does is that it commits us to a process where the differences of opinion can be joined, and then through the political process we can saw off and work to compromise the harmonization—
View Cathy McLeod Profile
CPC (BC)
Thank you.
Sorry, I have a few more questions, and I only get seven minutes.
I believe we could come up with a definition that would fit with this, but if this truly is a quasi-constitutional piece of legislation, to have it go through a private member's process without having the opportunity for the due diligence of even getting the minister here to talk about this bill.... A government bill is very different from a private member's bill; we're talking about a very significant piece of legislation. It sounds as if everyone believes it to be.
Justice Slade, do you have any comments on that?
Harry Slade
View Harry Slade Profile
Harry Slade
2018-05-03 16:15
Frankly I don't see any difference. It depends on who supports it, and I gather that at second reading the government supported it. I would offer an observation that it's a bit unusual to enact legislation calling for other legislation to be enacted. Frankly, unless it's constitutional, I don't see how that can be enforced, but it delivers a message that the author and the proponent of the bill, and presumably the government, want to get out there, and what's wrong with that?
View Cathy McLeod Profile
CPC (BC)
Article 19, which is more about the laws of general application, seeks to acquire.... To meet that sort of standard in terms of the Inuit, the Métis, the as yet undefined Daniels v. Canada, and the first nations from across the country that have not reconstituted...?
My other concern is that we have created something so unwieldy that the government could not even afford something such as Bill C-45, because everyone would have the right to have their consent sought on these issues.
Mary Ellen Turpel-Lafond
View Mary Ellen Turpel-Lafond Profile
Mary Ellen Turpel-Lafond
2018-05-03 16:16
I'm happy to comment on some of the assumptions I'm hearing.
One is that UNDRIP, in terms of article 19, seeks to promote a relationship that is collaborative. However, I want to emphasize—again, from reviewing some of the evidence, and obviously you have heard a lot—that constitutionally, the law is the law. People can say, “This means I have that,” but that's not accurate.
FPIC, as an example, is not an absolute concept. It has been presented sometimes as such by all kinds of people, but that's actually wrong. It's constrained. It's within a context of reasonableness, and it's framed.
It's the same with UNDRIP. What kind of a statute is this? Well, it's a federal statute. Where it starts and where it ends, I don't know. Certainly, it would be very important for all parties who have supported UNDRIP to find a way to bring this to a higher level and not to argue.
In any event, the technical questions you have asked do not seem terribly insurmountable to me. Legislation is legislation.
View Romeo Saganash Profile
NDP (QC)
Thank you, Madam chair, and welcome to our guests in Ottawa.
Welcome, Professor Borrows. I know that you are taking French classes at the moment, and I hope that they work out well for you.
I want to start with both professors. Some expert witnesses came to this committee and talked about the rights contained in UNDRIP as human rights, and that's how they have been treated for the last 35 years in the international arena.
Paul Joffe, one of our legal experts, talked about the charter rights that are contained in part I of our Constitution, and the section 35 rights that are contained in part II of our Constitution. The Supreme Court has referred to them as sister provisions.
We know that in our legal system, under section 4.1 of the Department of Justice Act, the Minister of Justice has to make sure that legislation is consistent with the Charter of Rights and Freedoms. We don't necessarily have that obligation with indigenous rights, aboriginal rights, or treaty rights in our system.
I believe that the minister would have that obligation even without Bill C-262, but do you believe that Bill C-262 would achieve that? Whenever legislation is contemplated in the future, will the government have to make sure that its laws are consistent with the UN Declaration on the Rights of Indigenous Peoples?
Maybe I'll start with Mary Ellen.
Mary Ellen Turpel-Lafond
View Mary Ellen Turpel-Lafond Profile
Mary Ellen Turpel-Lafond
2018-05-03 16:20
I do think that that's a very significant objective and an imperative that has already been accepted by the federal government, from what I understood from the statement of the Prime Minister on February 14 in the House of Commons.
More generally, as a principle of international law as adopted by Canada, these are human rights, and this does relate to section 35. There have been deficiencies in addressing section 35 appropriately. I'm not saying that there haven't been some good individual decisions, but there have been very structurally significant problems with moving forward on section 35 in a respectful, positive way with an appropriate human rights lens.
Bill C-262 allows us to put that human right lens appropriately where it should have been all along, but the depth of our dialogue was constrained by many historical factors. At the same time, the depth of our dialogue is enhanced by the acknowledgement that we've had longstanding respect for the rights of indigenous people, but many of our laws, policies, and practices are premised on the colonial assumption that indigenous people were not on the land, that they did not govern, and that they didn't have family structures. That more oppressive colonial context, which we know is false, is where human rights help us to rethink it. It's not going to unwind everything, but will help us to reconsider.
Just as human rights evolve as a living tree, this is a living tree. I do emphasize that it's part of a tradition of a reasonable—I'm not saying incremental—thoughtful, constrained approach, but it should also become a part of a routine human rights concept. All human rights have limits, but they provide a very valuable way to understand how we relate to each other and how government relates to citizens.
John Borrows
View John Borrows Profile
John Borrows
2018-05-03 16:22
I would agree and say that the orientation is also welcome. Sometimes there's an assumption that indigenous peoples are diametrically opposed, adversarial, or at odds with the way that we want to see ourselves develop as peoples living in this country. The notion of consistency communicates that very important and powerful ethos that we can strive to live together in ways that are complementary and congruent with one another, other, as opposed to being inconsistent and out of step with one another. The fact that the government would undertake that kind of review is an important aspect of that, but it sends the more general message that we don't have to be in this place of always seeing the world in diametrically opposed terms.
View Romeo Saganash Profile
NDP (QC)
I want to refer to subclause 2(2) in Bill C-262 as well as clause 3. Subclause 2(2) says that Bill C-262 cannot be interpreted as delaying the application of UNDRIP in Canadian law, and clause 3 talks about UNDRIP being an international human rights instrument having application in Canadian law. I would like to know if our guests here agree with those two.
Maybe we should start with Justice Slade.
Mary Ellen Turpel-Lafond
View Mary Ellen Turpel-Lafond Profile
Mary Ellen Turpel-Lafond
2018-05-03 16:23
Yes, I think it's very helpful, because we've had the quagmire that sometimes comes up around fundamental denial of rights, so I think it's extremely valuable to have that, because it's affirmative. Is it superfluous? No. It's affirmative, and it's important to be affirmative.
View Dan Vandal Profile
Lib. (MB)
Thank you, Mike.
Thank you to everybody for your very good presentations.
I guess the question I want to ask everyone is this. Let's assume that Bill C-262 will get approved, but before that, do you have any suggestions for how we can improve this private member's bill? Do you have any suggestions for amendments as we go down this road?
Let me begin with Mary Ellen.
Mary Ellen Turpel-Lafond
View Mary Ellen Turpel-Lafond Profile
Mary Ellen Turpel-Lafond
2018-05-03 16:25
Yes, there's one area that I think could benefit from clarification. In a way it's because of what I've heard in some of the misunderstandings of FPIC and these extreme views. I think we need to be moderate and respectful of our constitutional history. In particular, in the preamble, we could have a new paragraph that would say something like: whereas implementation of UNDRIP constitutes a principled framework for justice, reconciliation, healing and peace.
I think it should be focused on the fact that it is about bringing people together, not pulling people asunder. As someone's who's worked extensively with indigenous people throughout my career, I've repeatedly faced very adversarial events, cases, negotiations, whatever. But in the end, the most durable and successful initiatives are ones that are based on this commitment to reconciliation, healing, and peace. We have some historical precedents such as—I mentioned this—treaty land entitlement in Saskatchewan, where people work together, and whether you want to call it consent, it's peacemaking, and it's been remarkably positive.
I would respectfully suggest to you there could be an improvement in the sense of clarifying that this is about creating a more harmonious and peaceful.... It's not a disruptive, radicalized initiative. It's actually about human rights, peace, and harmony, and that, I think, could help address some of the perhaps more extreme interpretations you heard, which I don't think are valid. It's to say, just to be clear, that we are about reconciliation, healing and peace. I think it would be very valuable to emphasize that.
Harry Slade
View Harry Slade Profile
Harry Slade
2018-05-03 16:26
I think I've already spoken to how clarification would be very desirable. As it stands, it's open to some to understand FPIC, in particular, in one way, and others to understand it in others.
The last thing we need is conflict over understandings of what UNDRIP stands for and what the article that provides for FPIC stands for. I would join Professor Turpel in encouraging an amendment to the preamble along those lines.
John Borrows
View John Borrows Profile
John Borrows
2018-05-03 16:27
I would be happy to see that occur. I do note that we have the language of harmonization and consistency. The Treaty of Niagara, a treaty that was a part of the formation of Canada in the central part of the country, talked about peace and friendship and respect. I think there's a long constitutional tradition of striving to live together in that fashion. Certainly what Mary Ellen suggested would be consistent with that broader hope that we have when we put together our treaty relationships.
View Kevin Waugh Profile
CPC (SK)
Thank you, Madam Chair.
With respect to Bill C-262 regarding the United Nations Declaration on the Rights of Indigenous Peoples Act, I have a motion that reads:
a) the Chair of the Committee write, as promptly as possible, to the Chairs of the following standing committees inviting them to consider the subject-matter of the said Bill:
(i) the Standing Committee on Natural Resources;
(ii) the Standing Committee on Justice and Human Rights;
(iii) the Standing Committee on Environment and Sustainable Development;
(b) each of the standing committees, listed in paragraph (a), be requested to convey recommendations, including any suggested amendments, in both official languages, in a letter to the Chair of the Standing Committee on Indigenous and Northern Affairs no later than May 31, 2018;
(c) any amendments suggested pursuant to paragraphs (b) shall be deemed to be proposed during the clause-by-clause consideration of Bill C-262, and further provided that the members of the Standing Committee on Indigenous and Northern Affairs may propose amendments notwithstanding the recommendations received pursuant to paragraphs (b);
(d) amendments to Bill C-262, other than the amendments deemed to be proposed pursuant to paragraphs (b), be submitted to the Clerk of the Committee before May 31, 2018 and distributed to members in both official languages; and
(e) the Committee shall proceed to the clause-by-clause consideration of Bill C-262 on Tuesday June 5, 2018.
I have this in both official languages.
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