Indigenous and Northern Affairs committee  Okay, but read that very clearly. No federal law other than this act.... In this act, clauses 10 to 15 trump first nations laws. Just there, that's a—

Indigenous and Northern Affairs committee  —triumph over first nations laws.

Indigenous and Northern Affairs committee  Oh my goodness, the best interests of the child is one of the reasons first nations kids are apprehended to begin with, and that's the problem. It's allowing—

Indigenous and Northern Affairs committee  —the status quo—

Indigenous and Northern Affairs committee  —to trump first nations laws. There's no definition here.

Indigenous and Northern Affairs committee  Sure. You have to look at the section you're reading it from. It's specifically about conflict in relation to provincial laws, in the circumstance where a first nation has already signed a coordination agreement, or after the one year has expired, and there is no coordination agreement.

Indigenous and Northern Affairs committee  That's only for provincial law, and their law trumps only in the status of a federal law. It's not that the first nation.... They're talking about the first nations law, but keep in mind, this act talks about first nations laws as federal laws. It's not just provincial laws we have to worry about.

Indigenous and Northern Affairs committee  —clauses 10 to 15 in this act itself.

Indigenous and Northern Affairs committee  I agree, too. I agree with Dr. Blackstock's concerns and of course with the Canadian Human Rights Tribunal decision around the need for funding. It can't be a principle; it can't be a “whereas” clause. There has to be a commitment with very specific guidelines about how that funding will be determined, that it will be population-based, needs based on circumstance and those kinds of things.

Indigenous and Northern Affairs committee  Fair point. However, you have to keep in mind how many non-compliance orders were issued after that decision by the Canadian Human Rights Tribunal—seven, I think—and they're still in court debating whether this is going to apply to all kids, especially under Jordan's principle.

Indigenous and Northern Affairs committee  I would love to respond to several things you've said. The AFN, MNC and ITK had claimed that this was going to be co-drafted, and that's not how Justice Canada actually does legislation. There is no co-drafting of legislation. So then they changed the wording, admitted it wasn't co-drafting and said it was “co-developed”.

Indigenous and Northern Affairs committee  You can make any kind of argument when you go to court. The thing is, you try to put your best arguments forward and hope they stick. However, there's a critical difference in legislative drafting between a “whereas” clause and a principle versus a substantive right. When you say in the whereas “we want to provide funding to first nations”, that's very different than if you have a section in here that says “the minister shall provide” equitable funding to first nations or equal funding to first nations.

Indigenous and Northern Affairs committee  Hello. Thanks for having me. Kwe, ni'n teluisi Pam Palmater. I am from the sovereign Mi'kmaq nation on unceded Mi'kmaq territory. I have been a practising lawyer for 20 years, 10 of which were spent at Justice Canada and Indian Affairs, where I received all the training in the legislative process, statutory interpretation and legislative drafting.

International Trade committee  I think the most important point is that there is no one-size-fits-all. How they want to be consulted is a question that has to be asked to the Mi'kmaq nation and Treaty 4 and the Assembly of Manitoba Chiefs. In fact, there are many first nations or aggregate groups of first nations across the country that actually have their own consultation protocols that say, “Here's how we actually want to work with you on a wide range of issues.

International Trade committee  That's assuming that they knew about the opportunity. Don't forget that the legal obligation is on the federal and provincial governments, not the other way around. It's not for first nations to try to chase committees or meetings or public consultations and say, “Hey, listen to me.”