Indigenous and Northern Affairs Committee on March 11th, 2021

[The Chair, Liberal, Bob Bratina]

Thank you.

Madame Bérubé, you have a minute and a half.

[Sylvie Bérubé, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you, Mr. Chair.

I thank all the witnesses who are here today.

I represent the riding of Abitibi—Baie-James—Nunavik—Eeyou. We talked about it earlier when we talked about the Cree.

Mr. Rodon, you mentioned some countries that have already adopted the declaration. Can you tell us what difficulties they have had with the implementation of this text?

[Thierry Rodon]

To my knowledge, no country has passed an implementation act. However, some countries recognize the declaration in their constitutional legislation. Columbia, for example, has chosen to implement it procedurally. That means it's simply a process. Once the process has been followed, projects can move forward, whether the community is opposed or not.

I have written a number of articles about this with Martin Papillon, both in French and English. We advocate for a more substantive vision of the term. As Ms. Gunn has just explained, consent is a relationship. Take the Cree, for example. They don't say no to a project before having heard about it. Their mining policy says that they will meet with all the interested mining companies and have discussions with them, before deciding whether they are going to move forward or not.

That is the type of relationship we need, a relationship that benefits everyone. Investors will not waste time preparing projects that will never come to fruition, which we are seeing more and more in Canada. In my opinion, the risk is there. We must have a clear process for our expectations, for who must give consent, and for how it is achieved. Communities must be part of that. Free, prior and informed consent is not just for governments, it's also for the communities affected.

[The Chair, Liberal, Bob Bratina]

I'm sorry for the interruption.

Ms. Gazan, it's your turn for a minute and a half.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Thank you.

My last question is for Mr. Rodon. I had asked you a question about FPIC.

Do you believe that having more clarity with this bill will help keep projects out of court? I say this because we know Madam Exner-Pirot was concerned about that, but do you think the lack of clarity and the clarity this bill will provide will help improve relationships and also projects going forward?

[Thierry Rodon]

That is exactly what I am advocating. I feel that having a clearer process and a relationship with Indigenous people in which they fully participate will avoid a number of problems, such as with courts, with blockades or with RCMP actions.

I don't know whether you saw the foreign coverage of the RCMP operation against the Wet'suwet'en. But it did Canada and investing in Canada no favours at all. Everyone loses in that kind of situation.

Having a more inclusive process, in which Indigenous people are part of the decision-making, will help a lot. It will not solve all the problems, some will remain. However, it provides a friendlier climate for investors. In New Zealand, the fact that the Maoris are part of the decision-making poses no problems.

Thinking that having Indigenous people participate will limit investments is a narrow point of view. In my opinion, the opposite will be true; it cannot be worse than it is at the moment. I feel that action is required. Bill C-15 is one way of doing it, but it's not the only way.

[The Chair, Liberal, Bob Bratina]

Thank you, Mr. Rodon.

Mr. Melillo, you have three minutes, please.

[Eric Melillo, Conservative, Kenora, ON]

Thank you, Mr. Chair. I wasn't sure if I was going to get some time, so I appreciate the opportunity.

Maybe I'll just sort of pick it up from some topics that have already been discussed, just to flush them out a little bit more.

Obviously, there's been a lot of discussion around consent, the importance of free, prior and informed consent, and what that means to different people.

Maybe I'll just go to Ms. Gunn first. Obviously, there are a lot of differing opinions depending on who you talk to. You mentioned the UN has done some work on trying to get some clarity on that. Could you just maybe speak more to that?

[Prof. Brenda Gunn]

Sure, I'm happy to continue the conversation.

I think that starting back in the early 2000s the United Nations Permanent Forum on Indigenous Issues had a study on free, prior and informed consent that set out a lot of the standards about what sort of information..., what “free” means, and what we are talking about with “prior” and “consent”. I think this was then followed up with the study by the Expert Mechanism on the Rights of Indigenous Peoples in 2018, when they studied a human rights-based approach to free, prior and informed consent.

On this idea of a veto, they clarify that free, prior and informed consent is really about, again, protecting the rights that we're recognizing broadly in the UN declaration, so that when we talk about consent, the expert mechanism does state that there are circumstances—and they're set out in the UN declaration—when states are obligated to get indigenous peoples' free, prior and informed consent, and that the element of consent includes the idea that indigenous peoples do have a right to say no, that they may withhold consent following an assessment and conclusion that the proposal is not in their best interest, and that withholding consent is expected to convince the other party not to take the risk of proceeding with a proposal.

The expert mechanism has also said that arguments of whether indigenous peoples have a veto in this regard appear largely to detract from and undermine the legitimacy of the “free, prior and informed” concept.

We're really about including indigenous peoples in the process to ensure that we're upholding rights or understanding how their rights may be impacted by various projects.

[The Chair, Liberal, Bob Bratina]

Thank you very much.

Thanks, Mr. Melillo.

Ms. Zann, you'll close off our session with three minutes. Please go ahead.

[Lenore Zann, Liberal, Cumberland—Colchester, NS]

Thank you so much, Chair, and thank you so much to the witnesses.

I come to you today from Nova Scotia, from the unceded territory of the Mi'kmaq.

Ms. Gunn, the Truth and Reconciliation Commission's Calls to Action report calls on governments to fully adopt and implement UNDRIP and develop an action plan to achieve its goals. It is also referenced in the final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls.

Could you please expand on why you think that the Truth and Reconciliation Commission and the national inquiry both emphasize that the declaration is such a key part of reconciliation, and offer your views as to why this international document is so essential to advancing reconciliation here in Canada, in particular with the missing and murdered women and girls?

[Prof. Brenda Gunn]

Thank you. I will try to do so quickly.

I was trying to allude to this in my opening statement, but I'll try to be more concrete here.

I think that the Truth and Reconciliation Commission focused on the UN declaration as the framework for reconciliation because it recognizes that where states based their laws and jurisdiction on racist ideas and laws—such as the doctrine of discovery, which is based on the idea that indigenous peoples, as I said, were fierce savages whose occupation was war—this was used as the justification to undermine fundamental rights.

The UN has said that we have to start really addressing those questions, but also, really importantly, that through the process of recognizing indigenous peoples' inherent and fundamental human rights, we begin to shift the relationship from a colonial one, where a state thinks, with the paternalistic approach that we see sometimes in Canadian law, that it has all the power over indigenous peoples.

By recognizing indigenous peoples' rights as articulated in the UN declaration, it is going to help us shift our relationship and enhance harmonious relationships. It gets us new grounds for the relationship. It talks about a relationship based on the principles of justice, democracy, respect for human rights, non-discrimination and good faith. It's not just about colonial domination—which may have been the basis of the relationship historically—but actually trying to reset that relationship and uphold these fundamental principles.

[The Chair, Liberal, Bob Bratina]

We're right out of time there. I'm sorry to interrupt.

[Prof. Brenda Gunn]

Can I just beg to address the indigenous women's inquiry?

[The Chair, Liberal, Bob Bratina]

Go ahead.

[Prof. Brenda Gunn]

From my perspective, the importance of the UN declaration is the recognition of economic, social and cultural rights; things like housing, education and the rights to a job. Those are issues that have been recognized by the inquiry as fundamental for protecting indigenous women.

[The Chair, Liberal, Bob Bratina]

Thank you so much.

Thank you so much, members of the panel.

We are going to suspend very briefly. We have to do some sound checks with the next panel.

[The Chair, Liberal, Bob Bratina]

Ladies and gentlemen of the committee, witnesses, with quorum I accordingly call this meeting back to order.

We will continue with our second panel, including Mr. Saganash, Ms. Lightfoot and Ms. Augustine, in that order.

Mr. Saganash, I understand that you have a little bit of knowledge about this topic. I'm going to give you the honour of starting off.

Please go ahead, for six minutes.

[Romeo Saganash, As an Individual]

Thank you, Mr. Chair, and good morning.

Good morning to other committee members. Thank you for the invitation to appear at this committee and make some opening remarks before we go into questions.

To date, the United Nations Declaration on the Rights of Indigenous Peoples has been reaffirmed by the UN General Assembly at least 10 times by consensus. That means it was done without a vote. So we can say safely today that no state in the world presently opposes the United Nations Declaration of the Rights of Indigenous Peoples. That's what it means.

Last December the UN General Assembly highlighted that the declaration, “has positively influenced the drafting of several constitutions and statutes at the national and local levels and contributed to the progressive development of international and national legal frameworks and policies.”

The UN declaration affirms, as Professor Gunn mentioned, a wide range of economic, social, cultural, political, spiritual and environmental rights. These rights are inherent, or as we say, pre-existing. So it is urgent for Canada to finally respect and implement those rights in federal legislation.

I am pleased that Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act, is based on my own private member's bill, Bill C-262, and goes further, as a matter of fact, in certain instances. In my countless meetings and conferences across Canada, Bill C-262 received widespread support from indigenous peoples and the general public. It wasn't easy tabling a private member's bill. My first bill on the UN Declaration, Bill C-641 was tabled in December 2014. It was defeated on second reading in April of 2015. In April 2016, I tabled a new and stronger Bill C-262. The House of Commons passed the bill at third reading on May 30, 2018. However, a filibuster by a few senators killed the bill in June of 2019, just a couple of days before the passing of my mom.

Therefore, I fully support Bill C-15 being tabled by the federal government in the House in early December 2020. Government bills can proceed more efficiently, I believe, before the House and the Senate. Bill C-15 confirms the declaration as the minimum standards for the survival, dignity and well-being of indigenous peoples. I would add security to that list. The bill must be implemented in Canada, as preambular paragraph 2 says.

As a survivor of Indian residential schools, I'm especially pleased that Bill C-15 acknowledges in its preamble the calls to action of the Truth and Reconciliation Commission and the calls for justice by the National Inquiry into Missing and Murdered Indigenous Women and Girls, both of which call for the implementation of the UN declaration.

In reviewing Bill C-15, we see that it is important to underline that its 17 preambular paragraphs have significant legal effects. They add important content to the seven operative positions in the bill and they must be fully considered. For example, doctrines of superiority—preambular paragraph 9—which include discovery and terra nullius, are condemned as racist and legally invalid. All forms of colonialism—preambular paragraph 10—are also rejected, and the Government of Canada has committed to advancing relations based on such principles as justice, equality, non-discrimination and respect for human rights.

In the preamble, paragraph 11 emphasizes the urgent need to respect and promote the inherent rights of indigenous peoples. The Supreme Court of Canada has also affirmed our inherent and pre-existing rights in section 35 of the Constitution Act of 1982.

In the preamble, paragraph 12 of Bill C-15 asks that the Government of Canada recognize that all relations with indigenous peoples must be based on the recognition and implementation of the inherent right to self-determination, including the inherent right to self-government.

As indicated in the two international human rights covenants, Canada has an affirmative obligation to recognize and respect our right to self-determination. This obligation has existed, as you know, Mr. Chair, since 1976 when Canada ratified the two international covenants.

In my introductory remarks, I would also like to emphasize two current problems with the current text of Bill C-15. First, in some instances, the English and French versions are not compatible, and this is a problem that must be immediately redressed.

A second problem is in section 4 of the act. As currently drafted, it erroneously conflates two distinct and separate purposes as a single purpose that appears to solely relate to the actual plan. This is patently incorrect and would not be consistent with C-262.

Section 4 should therefore read:

The purposes of this Act are

Followed by (a) and (b).

I think my time is up.

I'm looking forward to the questions from the members of the committee.

Thank you, Mr. Chair.

[The Chair, Liberal, Bob Bratina]

Thanks so much, Mr. Saganash.

Sheryl Lightfoot is a Professor at UBC appearing as an individual.

You have six minutes. Please go ahead.

[Dr. Sheryl Lightfoot, Canada Research Chair in Global Indigenous Rights and Politics, University of British Columbia, As an Individual]

Thank you very much, Mr. Chair.

Good morning to those on the west coast, and good afternoon to those of you further east.

I want to open by acknowledging the lands of the Algonquin people where the hearing is physically being held, then also the lands of the Musqueam people where I have the privilege to work and live and where I am currently sitting joining you virtually this morning.

I'm Anishinabe, from Lake Superior Band of Ojibwe. I am Canada research chair and professor of global indigenous rights and politics at the University of British Columbia.

I had the honour to appear before this committee three years ago, in April 2018, when Bill C-262 was being debated in Parliament. Along with many other first nations scholars, advocates and community members, I, of course, was deeply disappointed by the failure to pass that bill into law.

However, I'm very pleased to be with you here today in hopes that Parliament can soon correct this historic failure and pass Bill C-15. I want to thank you for the invitation to appear today.

International human rights instruments like the UN declaration are developed with the intention that they will be implemented in domestic contexts and in full. In legal human rights scholarship, there is often talk about rights ritualism. In short, this means that states say one thing in the international arena, the human rights arena, and then do something else at home.

In my own academic work as a political scientist, I've observed a pattern that I have referred to as “selective endorsement”. What this means is that some states have attempted to water down the rights in the UN declaration, accepting only some of them for implementation and then self-selecting out of other rights. This is simply not morally acceptable to pick and choose human rights that one will respect while others are left behind.

I want to point out that rights ritualism and selective endorsement, as phenomena, are not limited to any one government or any one political party. Governments of all political stripes have repeatedly broken their promises to indigenous peoples. Treaties have been violated and Supreme Court judgments are at times reinterpreted and occasionally ignored, all the while portraying Canada as a global model for democracy and human rights.

Of course, many out there wonder if Canada is really serious about reconciliation. I've heard some very frustrated indigenous people say, reconciliation is dead.

What are we to do? Do we give up, or do we continue to try to find better tools?

I'm strongly in favour of the implementation model that Romeo Saganash created when he first brought forward Bill C-641 and then Bill C-262 to Parliament. This model, which is the foundation for Bill C-15, has a number of elements that I think are crucial.

First of all, it requires collaboration with indigenous peoples. It also requires concrete action including legal reform and, as has been discussed, the creation of an action plan, and it requires public reporting and accountabilities.

A large part of my own scholarly work involves looking at the comparative experiences of indigenous peoples around the world. I feel that Bill C-15 is advancing the global conversation and setting a very positive example for other states.

When we look around the world, we can see that a number of states have undertaken legal and policy measures to implement the declaration. As was mentioned in the first hour, committee members have heard about the national action plan process being developed in New Zealand, for example.

In addition, several countries in Africa have also implemented national legislation and policies to operationalize their commitments to the declaration. Constitutional reforms have also been an essential step, and Latin America has been especially proactive in this area.

National courts, from Belize to Botswana, Canada, Chile, Colombia, Guatemala, Kenya, Mexico and the Russian Federation have all cited the declaration in legal decisions nationally.

National human rights institutions in countries like Indonesia, Malaysia, Namibia, the Russian Federation and the United States have used the declaration as a framework for monitoring the implementation of indigenous peoples' rights at the national level. The declaration is also being implemented regionally, and examples here include the European Union and the Organization of American States, the African Commission and the African Court on Human and Peoples' Rights. The Inter-American Court of Human Rights has also drawn substantially from the UN declaration.

For more than a decade now, the declaration has been used to set guidelines and standards on the international level. A number of organizations have developed policies and/or guidelines to align with it. For example, and my colleague Professor Gunn mentioned some of these as well, the UN Development Programme, the World Bank, the Inter-American and Asian development banks and UNESCO. Various UN agencies and programs have addressed indigenous peoples' rights as they relate to business practices and commercial activity as well. International treaty bodies for the conventions that were signed are also increasingly utilizing the UN declaration in their assessments of compliance, therefore making the declaration legally binding through those treaties.

Quite simply, Bill C-15 represents the best approach to human rights implementation that I have seen from around the world, bringing all of these various elements together. Passing Bill C-15 into law will set a genuinely positive example for the rest of the world community. I know that other governments and indigenous peoples in other regions of the world are watching this process very closely.

Last week my colleague, Joshua Nichols from the University of Alberta and I published an opinion piece about the unfinished business of reconciliation. The Supreme Court has recognized reconciliation as a constitutional imperative. As Professor Nichols and I wrote, the court meant something much more profound and challenging than simply trying to get along. Reconciliation is about putting inherent rights and title into meaningful practice. As we said in the article, “Up to now, federal, provincial and territorial governments have largely left this crucial work in the hands of the courts. This has been a mistake.”

[The Chair, Liberal, Bob Bratina]

Ms. Lightfoot, we're well over time. We need to get in all of our questioning rounds.

[Dr. Sheryl Lightfoot]

I'll just close with one sentence, if that's all right.

If Canada is serious about reconciliation, we need a different approach. The declaration is the right foundation, and Bill C-15 provides a clear, sensible process to bring these commitments to life. Thank you.

[The Chair, Liberal, Bob Bratina]

Thank you very much.

Now, to complete our panel is President and Chief Lorraine Augustine on behalf of the Congress of Aboriginal Peoples.

Ms. Augustine, please go ahead for six minutes.

[Chief Lorraine Augustine, President and Chief, Native Council of Nova Scotia, Congress of Aboriginal Peoples]

Thank you, Mr. Chair.

First of all, I want to tell you a little about the Congress of Aboriginal Peoples. As I'm sure some of you know, we're one of the five national organizations, and we have been around for over 50 years. We represent the off-reserve, non-status and status Métis and the southern Inuit. That's just to give you an idea of where our organization is coming from.

Although I think the UNDRIP declaration is definitely something that I support as an indigenous woman, an indigenous person and an indigenous leader, the issue I have, though, is that we are not looking at indigenous.... I'm talking about the preamble of the bill and specifically about the interpretation of indigenous people being the definition of the Constitution of Canada, which says that “aboriginal peoples” are “Indian, Inuit and Métis”.

Unfortunately, I find that Canada has adopted a distinction base, which takes in first nations, Inuit and Métis, and it's used quite often in documents and in legislation. In my view, “first nations” is not a legal term. My issue is that if Canada is going to adopt this legislation, then we need to be sure that when they talk about “Indigenous peoples” it means all indigenous peoples, because the declaration does not determine if you're indigenous on reserve, if you're indigenous off reserve, if you're status or if you're not status. It talks about “Indigenous peoples” in this country.

When we look back and I look at the convention, right at the beginning of the convention they condemn “colonialism” and all practices of segregation and discrimination associated with it, in whatever form and wherever they exist, so right off the bat, even in the convention on the elimination of all forms of racial discrimination, by not including all indigenous peoples within Canada, how can a piece of legislation be law when right off the bat they are leaving out the vast majority of indigenous peoples who do not have a status and who do not live on a reserve? How can you say you're working with all indigenous peoples?

I want to quote something from UNDRIP. Article 2 says, “Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.”

On reading that, my concern is that already this piece of legislation is not being practised. Canada did adopt it at the United Nations. I participated at the United Nations and, as a matter of fact, I was at the constitutional talks back in 1982. I've been around for a little while. My biggest concern.... I totally agree with the intent and what the United Nations has done. It's a very good document. However, my concern with regard to Canada and the way it's written and the current preamble is that it's leaving out 80% of the indigenous peoples in Canada.

When we're talking about that, that is my concern with this preamble and with this piece of legislation. If you're going to put something through and it talks about indigenous, then it needs to be all indigenous peoples within this country and not a selected few. By “selected” I'm talking about those defined in terms of the Indian Act registration.

That's where I am at, and I want to thank you for letting me speak and address the committee. I do appreciate it and I will answer any questions you may have. I look forward to the questions.