Indigenous and Northern Affairs Committee on May 1st, 2018

[The Chair, Liberal, MaryAnn Mihychuk]

Welcome, everybody.

It's a historic day, and now we are at the INAN committee. We are discussing 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.

As we sit in this relatively new committee room, we are actually on the unceded territory of the Algonquin people. History is still alive and we must understand the truth before we can deal with reconciliation. We have begun the process.

The way it works is that you'll have up to 10 minutes to present. I'll try to give you signals, first very subtle and then not so subtle as we get closer to the time being up, so just keep an eye on me once in a while and I'll let you know. Then, after the presentations, we'll go to rounds of questions with the honourable MPs who are here, to get even more insight on your words of wisdom.

To begin with, we've got the Congress of Aboriginal Peoples.

Hi, Robert. Welcome.

[National Chief Robert Bertrand, National Chief, Congress of Aboriginal Peoples]

Thank you.

Chairman Mihychuk, vice-chairs McLeod and Saganash, committee members, representatives, and guests, I am National Chief Robert Bertrand of the Congress of Aboriginal Peoples—in other words, CAP.

I am pleased to be with you all today and wish to acknowledge that we are on the traditional and unceded territory of the Algonquin peoples.

The teachings and wisdom of our ancestors are essential for guiding our work and our discussions today.

I would like to recognize NDP MP Romeo Saganash for his dedication and perseverance in advancing Bill C-262 and commend the Liberal government for its full support of this crucial bill. Enshrining the principles set out in the UN declaration in Canadian law is a momentous step toward genuine reconciliation and safeguarding the individual and collective human rights of all indigenous peoples in Canada.

For over 47 years, CAP has committed itself to advocating for the rights and needs of the off-reserve status and non-status Indians, Métis peoples, and southern Inuit, the majority of whom live in urban, rural, and remote areas. CAP also serves as the national voice for its 11 provincial and territorial affiliates, which are instrumental in providing us with a direct connection to the priorities and needs of our constituents.

From coast to coast, the provincial and territorial affiliates of the Congress of Aboriginal Peoples play a leading role in providing us with direct access to the needs and interests of our fellow citizens.

Since Canada's full endorsement of the UN declaration, our people have been questioning what this means, what impact UNDRIP will have, and what the future now holds for them. During this time, we also witnessed Canada's commitment to advancing reconciliation, the TRC's 94 calls to action, and a renewed relationship with indigenous peoples based on recognition and implementation of indigenous rights.

As citizens of this country, we have come to recognize that to move forward together we need to have true reconciliation between all indigenous peoples, non-indigenous Canadians, and all levels of government. However, Canada's proclaimed renewed relationship with indigenous peoples and vision to achieve reconciliation has seemingly extended itself in a distinction-based approach to a select number of the five national indigenous organizations recognized by the Government of Canada.

Disguised as reconciliation, this approach is a strong indicator of the desire on the part of the federal government to simplify its political interface with indigenous peoples. This lends itself to creating a culture of exclusion, division, and inequality. One could argue that it further perpetuates competition for social, political, and economic interests amongst indigenous groups, communities, and families. As was done through the Indian Act, which created eligibility rules that classified status Indians as Canada's legitimate Indians for public policy purposes, Canada continues to justify its exclusionary relationship through public policy and law.

The federal government continues to pose the question: Who are non-status Indians? They are Indians who were ultimately forced into an identity category of the government's own creation. As of the 2016 census, non-status Indians—some 232,000 indigenous people—now account for nearly a quarter of the first nations population in Canada.

A great number of our constituents are skeptical that any significant changes would ensue as a result of UNDRIP and Bill C-262, as their voices have largely been ignored in terms of political recognition and engagement in policy development on substantive issues that affect them.

Certainly, the inherent rights expressed in the UN declaration are not exclusive or limited to federally recognized status Indians or indigenous peoples who live on reserve in Inuit Nunangat or the Red River Settlement.

Canada's ongoing unilateral decision-making on behalf of non-status Indians and the urban indigenous peoples must come to an end, as it is a direct violation of their fundamental human rights in UNDRIP.

Our constituents are the most vulnerable and marginalized of all Canadian citizens, who have and continue to fall through the jurisdictional and legislative cracks. In 1972, the Secretary of State for the Government of Canada submitted a confidential memo to cabinet showing that Canada was well aware that the Métis and non-status Indians were far more exposed to discrimination and other social disabilities and were the most disadvantaged of all Canadian citizens, living in circumstances that were intolerable, judged by the standards of Canadian society. Over 45 years later, we must ask ourselves why this situation remains the same.

For years, both federal and provincial governments in Canada have denied having legislative authority over Métis and non-status Indians, the federal government under the justification that subsection 91(24) of the Constitution has precluded them from doing so, and the provincial governments on the basis that the issue is a federal one. This has left many Métis and non-status Indians in what the Supreme Court of Canada has characterized as “a jurisdictional wasteland with significant and obvious disadvantaging consequences”. Justice Michael Phelan acknowledged that these consequences produced a large population of collaterally damaged people as the result of their being deprived of programs, services, and intangible benefits, recognized by all governments as needed.

In 1999, CAP addressed a crucial stalemate directly by launching a legal challenge in Daniels v. Canada. On April 14, 2016, after a 17-year court battle, the Supreme Court issued an unanimous decision on Daniels, declaring that the Métis and non-status Indians are Indians under subsection 91(24) of the Constitution Act of 1867. This landmark ruling confirmed that Canada is constitutionally responsible for the Métis and non-status Indians. It also affirmed that the federal government has a fiduciary relationship with the Métis and non-status Indians just as it does with status Indians and has a duty to consult and negotiate with them on matters that affect them.

In the Supreme Court's decision on Daniels, Supreme Court Justice Rosalie Abella stated:

As the curtain opens wider and wider on the history of Canada’s relationship with its Indigenous peoples, inequities are increasingly revealed and remedies urgently sought. Many revelations have resulted in good faith policy and legislative responses, but the list of disadvantages remains robust. This case represents another chapter in the pursuit of reconciliation and redress in that relationship.

The Daniels decision, in addition to the application of UNDRIP and Canadian law, has the potential to transform the relationship between Canada, Métis, and non-status Indians, and help shape the framework, including new legislation to recognize and implement indigenous rights in support of its commitment toward reconciliation with indigenous peoples.

As of today, two years following the decision, Canada remains an inactive partner in engaging CAP on Daniels. CAP, and by extension, the voices of the Métis and non-status Indians continue to experience exclusion from crucial discussions with the Canadian government that impact the rights and the lives of our constituents.

Bill C-262 would require the federal government to take all necessary measures to ensure that the laws of Canada are consistent with UNDRIP and develop a national plan to do so in consultation and co-operation with indigenous peoples.

This concludes my remarks this afternoon.

Thank you very much. Meegwetch.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Now we're moving to the president of the NCC, Todd Russell.

[Todd Russell, President, NunatuKavut Community Council]

Thank you, Madam Chair. Good afternoon to you, to your vice-chairs, and to all honourable members at this table.

A special welcome goes to Ms. Yvonne Jones, with whom I'm very familiar as my member of Parliament, and who is also a distant relative. We know each other, being indigenous in this country. We know who each other's families are, their histories, their loves, their wants, their needs. It's a peculiarity about indigenous peoples that is sometimes missed that our nations are very close. It's an important fact when we talk about the issues that are important to us.

My name is Todd Russell, and I am a proud lnuk. I am here today on behalf of the NunatuKavut Community Council and I represent the southern Inuit.

Let's begin by acknowledging that we are on the unceded traditional territory of the Algonquin people. I hear this a lot. For some these may be mere words, but it is a profound fact, and that fact comes with meaning. Some of that meaning is embedded in Bill C-262.

It is important to understand not only this fact but who it is you're speaking with. When I speak, I speak on behalf of the southern Inuit, and I look at Bill C-262 through our lens. NunatuKavut means "Our ancient land." It is the territory of the southern Inuit who reside primarily in southern and central Labrador. Our people have lived in their traditional territories since long before Europeans set foot on our soil. As it was in times of old, and despite centuries of colonialization, we remain deeply connected to the land, sea, and ice that make up NunatuKavut, our home.

While we have never surrendered our rights or title to our land, the Government of Canada has never fully respected our rights and has not lived up to its constitutional obligations to recognize and protect who we are and the lands we occupy. Our concerns have often been ignored when it comes to resource development in our territory, and after decades of work we are still waiting for Canada to finally accept our claim for negotiation.

Bill C-262 provides us an opportunity to move past this colonial relationship and to enshrine our rights to our lands and to have them recognized and protected.

Let's look at the intent of Bill C-262.

I want to thank Mr. Romeo Saganash, MP for Abitibi—Baie-James—Nunavik—Eeyou, for introducing this bill. Its intent is to ensure that all federal laws are consistent with principles in the United Nations Declaration on the Rights of Indigenous Peoples, as described in clause 4 of the bill.

What does this actually mean? In December 2017, Mr. Saganash provided some clarity around the intention of the bill when he recommended that it be referred to this committee. He said:

Bill C-262 would also allow us to begin to redress the past wrongs, the past injustices that were inflicted on indigenous people. This is the main objective of Bill C-262, to recognize that on one hand they are human rights but on the other hand that we begin to redress the past injustices that were inflicted on the first peoples of this country.

One of the things that we can do in the name of reconciliation is to adopt this framework that I am proposing through Bill C-262. I do not need to remind members that the world is watching.

While we are supportive of the bill and the intentions behind it, there is still much uncertainty as to what this legislation will actually do and how implementing it will affect the Inuit I represent. We also have concerns about whether the bill goes far enough for the recognition, protection, and implementation of the rights of indigenous peoples. We are, however, encouraged by the Government of Canada's support for the bill.

We note the following words from Ms. Yvonne Jones, parliamentary secretary to the minister of INAC, in support of the bill during second reading. Ms. Jones said:

Bill C-262 proposes a process of dialogue and the development of an action plan aimed at ensuring consistency between federal law and the declaration. Such an approach would be consistent with other ongoing processes, including the review of laws, policies, operational practices, and the permanent bilateral mechanisms that are in place.

Clearly the government's intention is to facilitate that dialogue, that process, and an action plan aimed at ensuring that Canadian laws are consistent with the United Nations declaration, and indeed that Canadian laws are aligned with Canada's commitments under the declaration.

In this regard there is much to be done, and it cannot be done in isolation. Comprehensive legislation and policy changes affecting indigenous peoples must be done in partnership with indigenous nations across Canada. The Inuit of NunatuKavut must be part of that process in a nation-to-nation relationship with the federal government.

This bill must also be viewed through the lens of the Truth and Reconciliation Commission's calls to action, which speak directly to this declaration. In fact, this bill is a direct response to call to action number 43. The federal government has clearly indicated its commitment to implementing these calls to action, and implementation of the declaration is a critical part of this work.

The TRC specifically addresses reconciliation as relationship. As the first of its 10 principles states, “The United Nations Declaration on the Rights of Indigenous Peoples is the framework for reconciliation at all levels and across all sectors of Canadian society.”

I also believe that this bill will only be effective when there is a clear plan around its implementation. To paraphrase Grand Chief Willie Littlechild—one of the architects of the declaration and the TRC report—there must be a clear vision and a clear path and plan for how it will be achieved.

What will Bill C-262 do? It is important to note that Bill C-262 is not creating any new rights for indigenous peoples. The rights of indigenous peoples as outlined in UNDRIP already exist in Canadian law; they are our inherent rights and are already recognized and affirmed in section 35 of the Constitution.

What Bill C-262 will do is create a positive obligation to ensure that existing and new legislation is consistent with our indigenous rights and clarify the circumstances in which those rights must be honoured in government decision-making. In other words, the bill will require the federal government, and indeed the provinces, to meet the promise of section 35 of our Constitution.

The ability of indigenous groups to oppose legislation or projects that adversely affect their rights operates on a spectrum. Indigenous peoples and the Inuit whom I represent specifically can and must have the ability to exercise self-governance and to make decisions affecting their lands.

This has already been recognized by the Supreme Court of Canada. In the Tsilhqot'in decision the court granted aboriginal title to more than 1,700 square kilometres of territory. However, the court also stated that the indigenous groups' interests must be reconciled with the greater public interest. Bill C-262 will not necessarily change this principle, but it strengthens it.

Free, prior, and informed consent, as contained in articles 19 and 32 of UNDRIP, is about self-governance. It is not in our view, as some would argue, about whether indigenous peoples have a veto. Members should ask themselves why certain people, in speaking about FPIC, use such pejorative words to describe indigenous decision-making and self-governance. Rather, these articles reaffirm the requirement for Canada to adhere to its already-existing obligations to consult, cooperate with, and accommodate indigenous peoples, and to do so with a view to obtaining our consent to activities that affect our lands and resources or to legislation that affects us.

In addition to clarifying when the requirement to seek consent applies, UNDRIP clarifies the nature of that consent: that it is to be obtained without coercion, that it be given prior to project decisions being made, and that it be based on the best available information.

What constitutes free, prior, and informed consent may vary depending on the circumstances and will be the subject of ongoing nation-to-nation negotiations and dialogue. Recent history demonstrates how the failure to implement and update laws to conform with UNDRIP can have quite negative impacts. The Muskrat Falls project, located in our territory, provides a prime example.

The passing of Bill C-262 cannot result in government simply continuing to follow existing policies and procedures with respect to the recognition of rights.

I just need one more minute to finish.

The federal government has recognized that its comprehensive claims policy does not adequately address the needs and realities of all indigenous groups. While I am optimistic about the newly announced recognition and implementation of rights framework, we will be watching closely to see how it will be put into action.

One concrete and meaningful step has been our engagement with the federal government on the acceptance of our claim for negotiation. As a further demonstration of the government's commitment to the principles of UNDRIP, we anticipate that this work to accept and negotiate our land claim will continue in a manner that facilitates the unique needs and positions of our people.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you. That's a good place to end.

Mr. Russell isn't a member of Parliament. Sometimes we can be long-winded. I'm not looking at Romeo, but—

The questioning opens with MP Will Amos.

[William Amos, Liberal, Pontiac, QC]

Speaking of former MPs, I'd like to welcome all of our guests, but also make special mention of the fact that Mr. Bertrand, the national chief, is also a former member of Parliament, a former parliamentary secretary, and a constituent of mine, as well.

[National Chief Robert Bertrand]

I was going to mention that.

[William Amos, Liberal, Pontiac, QC]

It's an interesting moment. I'm quite proud to be here before you, Mr. Bertrand.

I would love it if you could help us to understand the nature of the enhanced engagement you would like to see with our government. In your testimony, you mentioned that CAP's view is that the interactions between your organization and the crown have been inadequate. I'm not sure if that is solely directed towards the federal crown, or if it there's a provincial aspect to that as well.

I would like to hear more about what specifically you would like to be doing more of, or what aspect could be improved from CAP's perspective.

[National Chief Robert Bertrand]

Thank you very much for your question, Mr. Amos. If I may, I will answer in French.

As I mentioned in my remarks, the April 2016 decision of the nine Supreme Court justices was unanimous. Basically, this decision stated that all off-reserve indigenous people were now considered Indians under the 1867 definition.

Following that decision, we met with the government two or three times. If I remember correctly, we had a meeting here, in Ottawa, in the March following the ruling in the Daniels case. We invited several people to this meeting. The vast majority of them were members of the Congress of Aboriginal Peoples. We invited a range of people from different parts of Canada. I think there were also some lawyers.

The purpose of the meeting was to study the scope of the decision. As I said, we submitted a report a year and a few months ago to Indigenous and Northern Affairs Canada, but nothing has changed since then. I would have thought that we would have had more meetings with the government. I understand that this is important news for the government, and it is very important for us too. I don't want to speak for the department, but I think everyone was caught a little off guard by this decision.

We are doing our job right now. As you can see, one of our tasks is to meet with you. So we can tell you what we think of this decision. We would also like to start a dialogue with the department and with the Government of Canada.

Was that long-winded enough, madame?

[The Chair, Liberal, MaryAnn Mihychuk]

No, you could keep going, but it's up to the questioner.

[William Amos, Liberal, Pontiac, QC]

I appreciate your comments, Chief Bertrand. It is sometimes awareness and engagement work by the deputies, or even the government. On this side, we're listening. We're ready to make an appointment with the people in your organization, your colleagues, to better understand how you envision the scope of the Daniels decision and how it will affect our day-to-day work.

I will ask a question as a member of Parliament, since I'm the MP for Pontiac, and I represent the community of Fort-Coulonge. At the local level, what could I do better for the people your organization represents?

[National Chief Robert Bertrand]

What I'm going to say applies not only to you, Mr. Amos, but to all members sitting around this table.

As I have said many times before, about 70% of indigenous people currently live off reserve. These are figures from Statistics Canada, the government's own numbers. I'm not here to tell you that the Congress of Aboriginal Peoples represents all these people. However, we represent a good portion of them. As you know, the CAP has no members, just affiliates. We have an affiliate in each province. I am very pleased that our Labrador affiliate—our friend Todd Russell—is present here.

We have all the tools that can help solve the problems of unemployment, housing and education, but we are not asked to attend meetings. I find it regrettable that the CAP is not invited. As I mentioned earlier, it is one of five indigenous organizations in the country. If I were the government, I would try to use—

[The Chair, Liberal, MaryAnn Mihychuk]

You can finish your sentence.

[National Chief Robert Bertrand]

If I were the government, I would try to use all the tools within reach to solve the problems that indigenous people living off reserve are currently facing.

[The Chair, Liberal, MaryAnn Mihychuk]

That ends our time for that round. We're now moving to MP Cathy McLeod.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Madam Chair.

It's good to see Mr. Russell, who was here during my time. Of course Mr. Bertrand—thank you for coming—was a bit before my time as a parliamentarian.

I'm going to start with Mr. Bertrand. This is something I have found very puzzling, and I'm not sure where the government is going. I'm glad you're talking about the important consequences of the Daniels decision and how you perceive it as relating to a nation-to-nation relationship, in terms of the government's moving forward.

Can you talk to me a bit about how you see that overlay and interplay? I think it's complicated and I don't know how they're going to get to a place where they can have the appropriate consultation that is certainly required.

[National Chief Robert Bertrand]

It is very complicated, and—I have to be honest—it's even complicated for me. I live this 365 days of the year and still don't have my mind wrapped around it. These are very difficult problems, and the solutions are also very difficult to come to.

What has to be done is that we sit down with the federal government and start discussing and trying to find solutions. If you ask me what my solutions are for this or for that.... It's a much more complex problem. You not only need legal advice, but all different kinds of advice to bring solutions to problems on housing and education.

What we should do is at least start talking.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Yes. I think it would be fair to say that if Bill C-262 passed tomorrow, the government would have an obligation.... Well, it has an obligation anyway, but they haven't figured out how to meet that obligation, given the Daniels decision.

Mr. Russell, I was going to go to you next.

I know you talked about its being very inappropriate to use the word “veto” in relation to free, prior, and informed consent. I respect your saying that, although I want to point out that a number of indigenous communities themselves use that word, so I don't think it's a word that is used that consistently. Indeed, one NDP member said, for example, that free, prior, and informed consent means that with a project that might cross boundaries, every single community impacted by it would need to give consent, or the project would not go forward. We have, then, a member of Parliament for the NDP on television stating that very specific perspective on what this bill means.

I think we need to flesh this out. If we don't have a common understanding, we're going to be in a very difficult position. Although you said it's a distraction, I don't think, when you have so many people who perceive vetos in every single community requiring support of a project, that it's a distraction; and I think it's an important point of discussion.

[Todd Russell]

I said that certain people who use the word “veto” say it in a pejorative way, in the sense that it is negative or that it would prejudice our particular position on free, prior, and informed consent.

We take the view that it would be inconsistent with the inherent right to self-governance for indigenous peoples not to have the ability to either consent or provide non-consent to a project that is happening on our lands and that is integral to our survival and our ongoing existence. When we say that we have that ability, it is seen in the context of self-governance.

I don't believe there is any member around this table who would disagree that the inherent right of self-governance is embodied in the promise of section 35 and has explicitly been articulated to be so by certain court decisions, such as that in Tsilhqot’in. Would any member disagree that if you're a self-governing people, you actually must have that ability to say what's happening on your lands?

I see it, then, in the context of self-governance. All of these things, though, are contextualized as well. Very few rights that anybody has are absolute rights. Usually they come within a certain kind of framework or within a certain type of context.

I can understand, then, where you're going, but I think what this—

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Okay, I'm hoping to get one more question in, so—

[Todd Russell]

Yes. I think the declaration, though, does provide some clarity about FPIC in particular and certain other articles within the declaration.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

We know, for example, that article 19 talks about laws of general application and the obligation of the government. I'm looking at something like the marijuana bill as an example. We're hearing right now that as a result of the Daniels decision we're even having trouble defining where those conversations have to be, never mind getting to a place where the government could move forward, even in their four-year mandate.

They've made a commitment around legislating marijuana. If this bill is passed, they would not know whom they could talk to, so they would be unable to move forward with essentially anything during their four-year term, if they were to fully respect what Bill C-262 is doing.

[The Chair, Liberal, MaryAnn Mihychuk]

You have about 30 seconds.

[Todd Russell]

Respectfully, I disagree. It is obvious that the government knows who to talk to. We've been talking to each other for a very long period of time. If you look through the lens of reconciliation, it talks about how we engage with one another. I think it's a bit of an overarching type of statement to basically say that you can't get anything done because of free, prior, and informed consent. It happens every day. It happens every day between provinces and the federal government; it happens every day between municipalities and the provinces; it happens between indigenous governments and other levels of government.

[The Chair, Liberal, MaryAnn Mihychuk]

Now the questioning will move to MP Romeo Saganash.