Indigenous and Northern Affairs Committee on March 11th, 2021

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

I think that was one of the things we mentioned too, when we were discussing the work plan for this, the fact that groups are raising their hand and saying they haven't had the appropriate time to prepare and consult. That's one of the reasons I think this study is so important and your contribution to this conversation here, the ability to give testimony to the committee and hopefully we can make some recommendations.

Is there anything else you want to add, Ms. Augustine, in talking about the action plan going forward or something like that? I think you touched on that in your statement.

[Chief Lorraine Augustine]

I did. I think it's a great idea to have a national action plan but, again, I think it has to be inclusive. Canada has always had five national organizations. The congress has always been a part, way back when it was the Native Council of Canada, NCC. We were always at the table. We were always part of it and now we're not and since this last government, it seems to be even more. We need to have a national plan to incorporate all indigenous peoples whether it's by organization or by peoples. But we need to have a say in all of it.

I want to give you an example very quickly. The missing and murdered indigenous women have a core working group to work on a national plan. It's been nothing but trouble. You will have one organization saying this and another saying that. It's not supposed to be political. It's supposed to be everyone working together.

A national action plan getting everyone at the table is going to stall a lot of the progress in where we're going. I've seen that first-hand.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

To build on what you talked about, I want to talk about what we discussed in the first round regarding the fact that we still haven't dealt with some major issues, including the consent part. For those on this panel who may not have been listening to the first panel, we do support the spirit of the document. I think it's a document that has a meaningful path forward. But one of the parts we're having trouble with on this side of the aisle is we want to see the definition of consent. What does that mean before this goes forward? I don't know if you have any comments on that.

[Chief Lorraine Augustine]

Are you asking me?

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

I can. I can move it around the room if you want.

[Chief Lorraine Augustine]

It doesn't matter.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Okay, I'll start with you and then move it to....

[The Chair, Liberal, Bob Bratina]

Go ahead very briefly.

[Chief Lorraine Augustine]

I think that, yes, it does need to have a little more. Consent has to be consent with everyone, all indigenous peoples—on reserve, off reserve, status and non-status.

[The Chair, Liberal, Bob Bratina]

Thank you for that.

That brings us to another five-minute round with Mr. Battiste. Go ahead.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Thank you. I'd like to start off by asking Romeo Saganash a question.

Romeo, I want to start off by acknowledging your work on this and getting it to where it is right now. I want to say how deeply I appreciate your work on this over the years. As you know, my father and Alex Denny, the Grand Captain of the Mi'kmaq nation, were going to the United Nations for years in trying to implement indigenous self-determination.

You noted earlier that UNDRIP and Bill C-15 are the minimum standards. Rights such as section 35 rights are talking about pre-existing inherent rights. The preamble of UNDRIP speaks to “the urgent need to respect and promote the inherent rights of indigenous peoples”.

As in your earlier comments, why is it an important point to know that these are pre-existing inherent rights?

[Romeo Saganash]

I think it's important to re-emphasize that point. When we say that our rights are inherent or pre-existing, it means that no one has given us those rights, that we possess them as indigenous people and indigenous peoples.

What this bill does is recognize and affirm that very essential and fundamental fact that all of these 46 rights that UNDRIP enshrines are inherent and pre-existing. That is the very reason why courts have been using the UN declaration to interpret aboriginal rights here and abroad. There are specific countries that were mentioned. In Colombia, Guatemala and Belize, courts have interpreted indigenous rights in those countries based on what the content of the UN declaration was, yet these countries do not have Bill C-15 legislation which confirms that UNDRIP has application in their national law.

I think that is the important aspect of the law in this discussion. That includes, of course, the right to self-determination and the right to free, prior and informed consent. These are human rights. We're in 2021, and I think it's grand time that all politicians, all members of Parliament, stand up, recognize and uphold those human rights of indigenous peoples, of the first peoples in this country.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

There has been a lot of questioning on whether UNDRIP creates new rights. There have been a lot of people creating fear that UNDRIP is going to create new rights.

Do you see this as reaffirming the pre-existing rights and inherent rights of human beings, indigenous people in Canada, or do you see this as creating new rights?

[Romeo Saganash]

I do not. For a long time, the chairperson of the working group on indigenous populations would repeat at every session of negotiations that “this declaration does not create new rights”, that it just confirms inherent rights of indigenous peoples, the pre-existing rights of indigenous peoples.

I think this question is not relevant in my mind, because both Bill C-15 and the UN declaration reaffirm that these are pre-existing and inherent rights.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Thank you, Romeo.

In your earlier segment, I thought your analysis of the whole citizenship question and identity was spot-on. I want to read this off before I go to Ms. Augustine on her comments. In article 33, UNDRIP says:

Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live.

Ms. Augustine, you quoted section 35 of the Constitution, but are you in disagreement with article 33, which states that indigenous people should have the right themselves to determine who their membership is?

[Chief Lorraine Augustine]

Absolutely not. I don't disagree with that.

What I disagree with is.... I should be able to say to anyone, “I'm a Mi'kmaq woman.” It's not because of my affiliation with different organizations or a band that I'm not an indigenous woman.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

But would you agree, as clearly stated in article 33, that it's for the Mi'kmaq people to decide who's Mi'kmaq, not an outside entity?

[Chief Lorraine Augustine]

To a degree, yes, but—

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Which part of that do you not agree with?

[Chief Lorraine Augustine]

I agree with it.

What I don't agree with is that the Mi'kmaq—Jaime, you're from my same area, so you know this—are determining who a Mi'kmaq is, but they're still leaving out those who either don't live on a reserve or those who don't or cannot be registered. You have to remember that.

[The Chair, Liberal, Bob Bratina]

I'm sorry to interrupt, there.

We'll have Madame Bérubé for two and a half minutes and then Ms. Blaney for two and a half minutes.

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

Thank you, Mr. Chair.

My thanks also to all the witnesses who are with us today.

My question goes to Mr. Saganash.

I'm very pleased to meet you again. Could you describe the notions of self-determination and consent in the light of existing ancestral rights and the Canadian context?

[Romeo Saganash]

That is an important aspect that must be considered in the debate about Bill C-15.

In this whole debate, what must be understood is that various legal frameworks deal with the rights of indigenous peoples. Of course, section 35 of the Constitution is a major legal framework, a constitutional framework, no less. Treaties and international law are other major legal frameworks. There is also Indigenous law. We have our own laws.

Those four legal frameworks are distinct, but they strengthen each other and are interrelated. They are frameworks that we as Indigenous peoples can use to stand up for our inherent rights and our treaty rights.

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

Does Bill C-15 have a precise definition of free, prior and informed consent?

[Romeo Saganash]

Not in my opinion. Given the way in which systems work, legal decisions or opinions from courts depend on the circumstances of the law and of the facts of specific situations.

Defining something in that way eliminates a lot of other situations. Judges from different courts have to consider different circumstances, different facts and different legislation according to specific situations.