Bill C-262 (Historical)

United Nations Declaration on the Rights of Indigenous Peoples Act

An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples

This enactment requires the Government of Canada to take all measures necessary to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

If you were to amend Bill C-262, what would you suggest? Are there areas we need to amend, or are you satisfied with the bill as is?

[Merrell-Ann Phare]

Well, I was about 16 years old then. At the beginning, for a very long time, nobody knew what section 35 meant. There weren't any cases that described what was actually included in the 1982 amendments. Since then, we have spent a lot of time in court, as my colleague pointed out, trying to define what it means. I think reconciliation is actually about not continuing to wait for court decisions to tell you how indigenous governments—not just indigenous people, but indigenous governments—can be part of the Canadian governance structure to prevent those kinds of fights. That's the whole point. Yes, you start from a place of ambiguity, and you work together. I interpret Bill C-262, the action plan, the laws and compliance provision, for example, as saying that we need to have a conversation. I know that a number of commentators have said this is about the start of a conversation. We have to figure it out together. That's the whole point.

[Thomas Isaac]

We have guidance from the court to date. I guess, more generally, reconciliation in part for me means indigenous peoples having valiant protection of their rights, having access to services like all other Canadians, being respected for being indigenous, and being able to exercise their rights, culture, and traditions freely in pursuit of their self-determination in Canada.

I have a very broad view of reconciliation. My point about reconciliation in Bill C-262 is that we, in my view, are at a point in our country where we can have a nuanced conversation to ensure that we continue moving forward. My comments were not against UNDRIP generally, but quite the contrary.

My comments were that Bill C-262 as presently drafted, for example, refers to the objectives of UNDRIP. As a lawyer, I want to know what the objectives are. I think reconciliation deserves that, quite frankly. I think indigenous peoples deserve to know exactly what objectives government, the Parliament of Canada, is signing on to, and I mean that very genuinely. We're at that stage in our development and I worry that rhetoric gets in the way of reconciliation. I'm not at all against the recommendations of from the Truth and Reconciliation Commission. My issue is with how you implement them in a thoughtful, prudent way.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, Madam Chair.

Thank you to the panel for being here.

As this is my first occasion to speak after the incident in Toronto, I want to express my deepest sympathies to the victims at Yonge and Finch. It's an area that I'm very familiar with, as I spend a lot of time there.

With regard to the question of reconciliation, Mr. Isaac, you appear to have a fairly different view of reconciliation from, say, the Truth and Reconciliation Commission. I know that in calls to action 43 and 44, the TRC itself called for full implementation of UNDRIP. You say that Bill C-262 doesn't in fact talk about reconciliation, and I would say that the fact that Bill C-262 is coming in is what this is about.

You also referred to Desmond Tutu as saying that the core element of reconciliation is truth. I think perhaps there are different viewpoints on this, but I really want to get to the key point of what you think reconciliation means in your words. Surely it's not the status quo. Surely it's not being one of four countries to abstain in Geneva, or denying that we even need to implement UNDRIP. Surely reconciliation means more than what we've had in the last 10 years. In your mind, what does that mean to you?

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

You have used that word on a couple of occasions now, at least six times since you started, and I totally disagree with that characterization, because it's not a blunt international human rights instrument. I think it's the international human rights instrument that took the longest to negotiate and draft. In fact, it took us over 23 years to negotiate and draft this instrument, so it's not just a blunt instrument that came about. I totally disagree with that.

In fact, yes, there are covenants, conventions, and international treaties that don't necessarily have the same status as declarations. I agree with you on that, but that does not mean that declarations have legal effect in law in this country. Already, back in 1989, the Supreme Court confirmed a decision on a human rights case that declarations in international law are relevant and persuasive sources to interpret domestic human rights law. In Tsilhqot'in again, in their decision, it was even confirmed that the Charter of Rights and Freedoms that we find in part I of our Constitution and the section 35 rights that we find in part II of our Constitution are sister provisions.

That's the law as we speak today. I think it would be an error for this country to delay the application. It's an error for this country to even debate the human rights of indigenous peoples in this country.

Ms. Phare, I think I have two minutes. You specifically focused on FPIC. You talked about the collaborative consent your group has worked on, which is very important. I think Bill C-262 is a collaborative proposition that I'm making. I know that in law, even if the jurisdictions between federal and the provinces are there in our Constitution, the Supreme Court has confirmed they're not absolute, because there are aboriginal rights involved every time. Do you see a relation between FPIC, a veto, and a right to self-determination?

[Thomas Isaac]

Thank you, Member. I would agree about your framing of the right. My comments today were on Bill C-262 in their entirety. If it was simply about the right of self-determination, I'm looking at UNDRIP as a whole and having it apply holus-bolus to Canadian law without any particular guidance. That's the level of my concerns.

In no way whatsoever am I picking on any particular indigenous right—in fact, quite the contrary. I would argue that this in fact would be a good thing to look at, but to just sort of bluntly bring in UNDRIP without understanding how it's going to affect Canadian law—

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

In that sense, I'm puzzled or troubled by the fact that this is a human right that belongs to indigenous peoples, the right of self-determination, and you're suggesting to this committee that we should be careful about enshrining that human right, which already applies, in my view. That's what Bill C-262 confirms. It already applies to Canada.

In fact, the human rights committee back in 1999 confirmed that the right to self-determination under both covenants applies to indigenous peoples in Canada. That was in 1999, way before the UN Declaration on the Rights of Indigenous Peoples was adopted by the UN General Assembly.

Why should we—us, as indigenous people—wait and be careful about how this right is going to be applied in this country?

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

Certainly, from my perspective, having a common understanding of what FPIC means in the context of this legislation is absolutely essential. We don't want courts defining it. We don't want to move ahead with Bill C-262 and then....

I appreciate that Ms. Phare has a perspective, and I certainly think hers is an ideal way of how we should be moving forward together as a country. However, I have to say that I'm watching Kinder Morgan right now and the British Columbia government, the Alberta government, and the federal government, and first nation communities, and I'm not seeing that there isn't a time when sometimes decisions have to be made and that co-operative consent is pretty difficult to achieve.

I wonder if we are setting ourselves up. I remember that the minister said this piece of legislation, perhaps, is a “distraction” from the important work we have to do around breathing life into section 35. She's since backtracked, but she clearly had some reservations at the time. I'll open that up for comments.

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

Thank you, Madam Chair, and thank you to both witnesses who clearly have brought two different perspectives on this particular piece of legislation.

I do not think that anyone at this table is saying that UNDRIP is good or UNDRIP is bad. We all agree that the UN declaration is an important instrument, an important tool, but we're talking about Bill C-262 in the context of Canada.

I listened to Ms. Phare's definition of consent. We also had someone who talked about three different definitions of consent that could apply within Bill C-262, or within how the courts might ultimately interpret consent.

I was on an APTN panel with a New Democrat member just last week. With regard to the Kinder Morgan pipeline, he said that every single first nation impacted by it had to give free, prior, and informed consent from his perspective. That is very different from how Ms. Phare talked about consent. We have first nation witnesses, like Pam Palmater, who have a definition.

Should Parliament determine and have that conversation about free, prior, and informed consent before we actually make a legislative commitment to implementation?

Mr. Isaac.

[Merrell-Ann Phare]

I know that announcement was met with some.... Different folks felt differently about it. Not all aboriginal governments support that particular initiative.

However, it works with the non-derogation clause in Bill C-262, which basically says that this bill is not intended to diminish the rights as affirmed in section 35 of the charter. Actually working on a process with indigenous governments to help define what those are.... Right now, we're leaving it up to the courts to define.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

What suggestions would you have for this committee in terms of amendments to Bill C-262 if we were to move forward on this?

[Thomas Isaac, Partner, Cassels Brock & Blackwell LLP, As an Individual]

Thank you, Madam Chair.

First of all, thank you to the committee for inviting me here today to give you some comments on Bill C-262.

My name is Tom Isaac. I'm a partner with Cassels, Brock & Blackwell. I'm here in my personal capacity. I practice exclusively in the area of aboriginal law across Canada.

My comments today are focused on why incorporating UNDRIP within Canada's already highly developed and world-leading legal regime. Protecting indigenous rights against unilateral and unjustified state action requires a prudent and thoughtful approach. This approach needs to be sensitive to existing Canadian law and the tremendous efforts undertaken by our courts, indigenous peoples, and some public governments over the last 25 years. Bill C-262, as currently drafted, does not reflect the necessary prudence or thoughtfulness required, in my respectful view.

UNDRIP and the embrace of the principles therein mark a critical step forward by some parts of the international community to recognize and protect the rights of indigenous peoples globally. This is a significant international human rights achievement. UNDRIP provides an important benchmark in a world that has too often harmed, mistreated, and exploited indigenous peoples.

You will note that I said “some parts of the international community”. Not all states with indigenous peoples are on the right path, and the process itself relating to UNDRIP has been divided. During the 2007 UN General Assembly vote regarding UNDRIP, only 42 states—that's out of 88, according to the United Nations at that time—voted in favour of UNDRIP. In fact, most of them put the same caveats on their vote in favour of UNDRIP that Canada ultimately did, in terms of its being subject to domestic law. So 42 out of 88 voted in favour of UNDRIP, while 4, including Canada at the time, took principled reasons to vote against it. As for the other 42, they either abstained, of which 100% of those abstaining that day were states with indigenous peoples, or they didn't bother to show up at the UN for the vote. Of those states, 93% had indigenous peoples.

My point here is that it's important to recognize that UNDRIP was drafted in the context of this division. By necessity, UNDRIP needed to be blunt and as easy to understand as possible, given that it was intended to apply globally to address those states that act without constraint against the rights of indigenous peoples.

This is not to suggest that UNDRIP has nothing to offer Canada. I want to be very clear that many elements of UNDRIP can be extremely relevant to Canada. In particular, I would focus on the ones relating to education, health, equality under the law, the development and maintenance of political systems and institutions, social and economic security, and gender equality. While these and other elements of UNDRIP are relevant to Canada, any effort to adopt UNDRIP must reflect the distance that Canada has travelled to date to prioritize reconciliation with indigenous peoples, the lessons we have learned over the past decades, and the significance—I would say the unique significance at law globally—of section 35, a uniquely Canadian creation.

Since the 1990 Supreme Court of Canada decision in Sparrow, the court has developed a framework for protecting indigenous rights and reconciling those rights with other indigenous and non-indigenous Canadians through nearly 70 decisions. The progress made so far has been the product of substantial and purposeful efforts and dialogue between indigenous and non-indigenous Canadians. Today, after decades of effort and investment by all parties, we have a constitutional regime that, for example, recognizes and protects Tsilhqot’in aboriginal title rights to land, and identifies the degree of consultation required when reversing the flow of a pipeline.

We also have a federal government that has expressly stated that Canada's most important relationship is with its indigenous peoples. As each year passes, Canadians, indigenous and non-indigenous, gain increased certainty and confidence in how indigenous and non-indigenous peoples can respectfully and productively live together.

In introducing Bill C-262 at second reading, the bill's sponsor said that the bill promises to “at least provide the basis or framework for reconciliation in our country”, with respect, suggesting that a new approach to indigenous rights is needed, one focused on reconciliation. Again, with respect, reconciliation has been the primary goal of the Supreme Court of Canada for nearly three decades. Again, I'm not here to suggest that we're done, but reconciliation is at the core of our case law to date.

Progress in defining and advancing reconciliation has resulted in increasing clarity and has allowed us to have more meaningful discussions, better protect aboriginal and treaty rights, and promote reconciliation through practice. Bill C-262, as it is presently drafted, risks disrupting the increased clarity within Canada's legal regime for protecting indigenous rights and as a result, risks becoming an obstacle to the pursuit of reconciliation.

UNDRIP itself cannot be meaningfully incorporated into Canadian law unless it is understood in relation to the existing Canadian legal framework, importantly, including section 35. For example, UNDRIP uses such terms as “indigenous”, “the lands and territories of indigenous peoples”, and “free, prior and informed consent”, each of which will need to be interpreted within the context of Canada's existing legal regime for the protection of indigenous rights.

It is presently unclear in Canadian law who “indigenous” refers to. In Daniels, the Supreme Court stated that the term included those individuals who do not possess section 35 rights. Additional instruction is needed to clarify the intended beneficiaries of the rights set out in UNDRIP. Is it intended to apply to all indigenous peoples throughout this great country, including those who self-identify as being indigenous?

Likewise, Canada has developed a highly sophisticated understanding of indigenous interests in land, including traditional territories, aboriginal title, a right to the land itself, and treaty lands. These terms aren't used in UNDRIP, which lacks specificity, including any relation to overlapping and competing indigenous interests, which is a very live issue in Canadian law.

Finally, much has already been said about free, prior, and informed consent. I'd be delighted to talk more about this concept. It means a veto, or a duty to consult that is consistent with what already exists in Canadian law, or something different. This phrase is clear on its face upon plain reading of UNDRIP, and I think credit ought to be given to the drafters. Any attempt at redefining the phrase in a less than forthright manner, in terms of its application to Canada, risks undermining the needed and necessary transparency in the reconciliation process. I say this with respect. Say what you mean and mean what you say.

Nowhere does UNDRIP refer to reconciliation or give specific consideration to how indigenous and non-indigenous Canadians can respectfully coexist. Such considerations are irrelevant for most countries, where indigenous rights are fully subject to the acts of a government. In Canada, reconciliation and principles, like the honour of the crown, are at the core of the relationship between indigenous peoples and all Canadians and work to direct and constrain how governments interact with indigenous rights.

In the preamble of Bill C-262, it suggests that the Parliament of Canada recognizes the principles set out in UNDRIP. There are many principles enunciated in UNDRIP, which are all relating to things like democracy, the rule of law, and the charter, none of which are novel to Canada. However, section 5 of Bill C-262 refers to the objectives of UNDRIP, although UNDRIP makes no reference to its objectives, its goals, its aims, or its intentions.

With respect, the sponsor has said that Bill C-262 can advance “justice” and “reconciliation” and clarify “the existing rights of indigenous peoples” and establish “very clear rules”. As presently drafted—and again, with respect—the bill provides no clear or even vague direction on any of those matters, does not explain how it will advance justice or reconciliation, and does nothing to clarify the existing rights of indigenous peoples in Canada.

Finally, the bill is missing an element that should be essential for any legislation that proposes to alter Canada's legal regime, which would be a clear explanation of how the outcome of adopting the bill will differ from the current law existing in Canada.

Canada's legal regime relating to the protection of indigenous rights is evolving and can benefit from being examined critically against the clear, if bluntly stated, articles of UNDRIP. However, simply adopting UNDRIP, without clear direction of how it should interact with Canada's existing legal regime risks disrupting the increasing clarity that has been gained through unprecedented efforts and decades of decisions by the Supreme Court of Canada.

To conclude, to move forward, Canada requires a thoughtful and purposeful approach, consistent with the honour of the crown, and I suggest to the committee that this is what reconciliation deserves. To the extent that the bill can contribute to that dialogue, it should be revised to provide the context and substance required for promoting and enhancing reconciliation and protecting indigenous rights in Canada. As I wrote in my 2016 report as the minister’s special representative on reconciliation with Métis, “Reconciliation is more than platitudes and recognition. Reconciliation flows from the constitutionally protected rights...protected by Section 35 and...must be grounded in practical actions.”

Those are my submissions.

Thank you.

[Merrell-Ann Phare, Centre for Indigenous Environmental Resources and the Phare Law Corporation, As an Individual]

Thank you, Madam Chair, for the invitation to present to the committee.

My name is Merrell-Ann Phare. I'm based out of Winnipeg, Manitoba. I'm the founding executive director of the Centre for Indigenous Environmental Resources, which is a national first nation charitable environmental organization. Working together in 1994 with 10 chiefs from across Canada, including Phil Fontaine, Matthew Coon Come, and Manny Jules, whose names some of you will know, we built CIER. Since that time we've implemented across Canada more than 400 environmental capacity-building projects in as many first nations.

I'm a lawyer. I work and write on environmental indigenous law, water and water governance, and treaty land entitlement issues. In 2016, on behalf of the Government of the Northwest Territories, I negotiated two transboundary water agreements in the Mackenzie River basin, between the governments of NWT and Alberta and between the governments of the Northwest Territories and British Columbia.

I want to applaud both Mr. Saganash for his tireless work and the current government for their commitments to the United Nations declaration and on building nation-to-nation relationships. No government in Canadian history has made such important statements. However, to be more than aspirational goals, they must be enforced in law.

I've read the transcripts of evidence given to the committee to date. I'm going to assist you by trying to focus on just one thing—namely, the free, prior, and informed consent piece. I want to start by saying that it does not, in my view, mean a veto, but it does mean some very important process and substance elements, which I will explain.

Here's the issue as I see it. Indigenous nations were original partners in Confederation and should have been recognized as such. We should have, from the beginning, worked together as collaborating nations to build Canada. But we didn't. For example, we made treaties and then ignored them. This is the problem.

The solution, the one that would greatly prevent or reduce project-based disputes—think of pipelines when I say that—and the one that would also result in real reconciliation, lies in a government-to-government approach to consent. This is mutual consent between governments in Canada—federal, provincial, territorial, and indigenous. My colleagues and I call this “collaborative consent”. We believe it's a nation-to-nation mechanism to achieving the United Nations declaration.

Full reconciliation will happen when indigenous nations are recognized as partners in Confederation and Canada's system of governance is structured accordingly. Yes, this sounds high-minded, abstract, and theoretical, but it isn't. It's happening already. We have not only proof of possibility; I will share with you some examples. We just need to provide more oxygen to these examples. Bill C-262 can make that happen.

Collaborative consent is how you get to the United Nations declaration. It's simple to understand and hard to do, because it means a different attitude and a real change in practice, and also in institutions and governance. We first wrote about the collaborative consent concept in 2016. It was the approach we'd been using in the Northwest Territories since 2005 and more recently in negotiating the water agreements I spoke to you about.

You have an executive summary in front of you setting out the details of our seven hallmarks of collaborative consent. It's written in the context of a B.C. water application, but it applies to all situations.

A nation-to-nation approach to consent, to what we call collaborative consent, already operates on a daily basis in our own country, and it has worked well. Today federal, provincial, and territorial governments co-operate, collaborate, negotiate, and plan many things that are of common, overlapping, or even conflicting interest through a process called “co-operative federalism”. This process is ongoing, is not time-bound, is rarely ever perfect, and is necessary to make a complex society like Canada work. There's no real other way to do it. It's the way we do democracy in Canada.

Over the last 151 years, this approach has been tested well. We have grown and evolved as a country. We know how disputes occur and how they're resolved. We also know that they are very rare. Health care is a prime example of where conflicts can arise, as is anything to do with oil and gas, as we see from our headlines daily. But extreme conflict, such as intergovernmental litigation, is actually very rare. If you think about this, at co-operative federalism tables, jurisdictions are actually achieving each other's free, prior, and informed consent to proposals on the table. Collaborative consent is co-operative federalism as if indigenous nations had been participants from the beginning as part of the governance of Canada. We're partway there. We just need to go a bit further.

The day after this bill is passed into law, federal and indigenous governments should start formal transition to collaborative governance arrangements, as per co-operative federalism. I'll give you an example of an immediate change that could occur. In the 2016-17 fiscal year, there were 141 FPT—federal-provincial-territorial—intergovernmental meetings. Five of them were between premiers, 44 of them were between ministers, and 85 of them were between deputy ministers. This is where all of the work is done to set or partner on the policy and program directions for Canada about almost every aspect of Canadian society, regardless of who holds jurisdiction. This is where the real work of governing this country happens. Levels of governments bring their jurisdictional authorities to the table, and then they negotiate how they're going to work together on any given issue.

None of these meetings involved indigenous governments, and only one of them had anything to do with indigenous issues. These FPT meetings should include indigenous nations. They should be FPTI tables. It is clear that indigenous nations would have to self-organize in a way that is conducive to permanent participation. Many are in governance transition, it's true, but that's a solvable problem. The most important thing is that these tables of co-operative federalism must include permanent chairs for indigenous nations.

We need to achieve consensus at FPTI tables about broad directions, policies, and agreements that drive Canada. Think water and energy policy, climate change, and conservation targets. These are the upstream discussions necessary to preclude end-of-process or project-based disputes. Under co-operative federalism, agreement isn't always reached, and governments must or do flex when diplomacy and negotiations fail. This is unlikely to change. Governments will always have the things that they can resort to if other jurisdictions don't agree, such as legal action. Collaborative consent doesn't mean that indigenous governments won't sue other governments over specific disagreements. I just believe that it's less likely to occur.

I'll give you three examples of where collaborative consent is already happening in Canada. One example is in Manitoba. We are developing a collaborative governance table in southern Manitoba, involving 17 mayors, 10 first nations chiefs and, hopefully, the Métis. This is a collaborative consent process resulting in a permanent governance table. It covers 70% of the population of Manitoba and 68% of the GDP. Collaborative decisions can have a huge impact at this scale.

The NWT is another example. It has a territorial resource revenue-sharing agreement with all indigenous governments. What this means is that, regardless of where resource development happens anywhere in the Northwest Territories, 25% of all the revenues that the Government of the Northwest Territories receives from resource development is shared among all indigenous governments according to a sharing formula that the indigenous governments themselves developed. This is in addition to whatever local impact benefit agreement might be negotiated with the directly impacted community. This is the kind of solution needed to deal with linear projects like pipelines.

The NWT also created two laws, the Wildlife Act and the Species at Risk (NWT) Act, through a co-drafting process where all hands were on the pen, rather than a co-development process where, at the end of the day, justice holds the pen over the text.

To conclude, we are in the middle of rebuilding our nation, starting with nation-to-nation relationships. There are 150 years of work that should have been started long ago, yet the opportunity sits before us. We all will, by necessity, need to change.

I want to leave you with an image. Think of our FPTI governments as beams. We all need governments to bend towards the space where we can work co-operatively together at a fully occupied table of Confederation. We have had three of the four beams work, bend, and build for 151 years, but we need the final beam to be in place in order to achieve reconciliation of all Confederation. Bill C-262 gives us the focus and fortitude to bend all the beams and be more explicit about the necessity, not the luxury, of indigenous participation. The collaborative consent examples that I've shared show that it is happening in small places.

Bill C-262 will mandate that this thinking be mainstream, and will require everyone, no matter what their place in the system, to look at their role through the lens of compliance with the UN declaration. This committee needs to think about how we accelerate this whole thing so that it will happen everywhere, from top to bottom to top. This path we're on may seem very difficult. It's certainly complex.

However, as the Maori say, we have worked too hard not to work harder; we have come too far not to go further.

Thank you.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you. Congratulations on that incredible initiative.

The next question is to both Ken and Ryan.

Ken, you were asked whether there would be a better outcome for indigenous peoples once this legislation is passed and your answer was “maybe”. You're not too sure if anything is going to change for indigenous peoples with respect to UNDRIP. I sort of agree with that because as indigenous peoples we have a long-time experience with, on one hand, signing agreements, and the next day those agreements or treaties not being respected.

I feel that indigenous rights have been recognized and affirmed through section 35 of the Constitution. They've been recognized and affirmed under the UN declaration. They've been confirmed on many occasions by the courts. The problem has been that governments did not respect those decisions or those constitutional or international law provisions. That's the problem.

I think in a way this is going to continue even after the passage of Bill C-262, unfortunately, unless we have a brand new government on the other side of the room in Parliament that commits to doing things differently.

I would like your comment on that, both Ken and Ryan.

[Dr. Ken S. Coates, Canada Research Chair in Regional Innovation, Johnson-Shoyama Graduate School of Public Policy, University of Saskatchewan, As an Individual]

Thank you very much, Madam Chair, and members of the committee. I'm honoured to speak to you about an issue I consider to be of fundamental importance to the future of Canada. I speak to you today from the homeland of the Okanagan Nation. I was supposed to be in Norway, but Toronto can't handle winter so they closed down the airport and I ended up in Kelowna instead. That makes sense to me.

My name is Ken Coates. I'm a Canada research chair at the University of Saskatchewan. I'm delighted to speak with you today.

UNDRIP came out of a remarkable international process I think we should always recognize and honour. From that process came two really key messages: first, that indigenous people have been marginalized around the world, and second, that they have articulated a strategy for their own inclusion, autonomy, and cultural survival. UNDRIP also reminds us of a simple fact that indigenous peoples have never been “given” full recognition of their rights and they've have had to fight for them constantly over many years.

When UNDRIP came to be considered by the Government of Canada, it was presented as an aspirational document. It does spell out very clearly the dreams of indigenous peoples and what should be but are not yet the goals for the people and the Government of Canada. I endorse in total the spirit of UNDRIP. It identifies what indigenous peoples desire and deserve, and it has the capacity to hold the nations of the world accountable.

The main question for today, and for all of you, is whether Bill C-262 is the right mechanism for realizing the potential of UNDRIP. While I see many parts of it to be true, I think the answer is far from clear. By the way, I'm not a lawyer. I'm an historian and a public policy person. I'm not as skilled in the nuances of the law as everybody else might be. However, I'm a practical person, so the question for me is whether this bill will result in markedly better outcomes for indigenous peoples in Canada in the short term, medium term, and the long term. At this point, what I would suggest is that the answer to that is maybe. I think we can do better than that with this bill, but also with subsequent conversations.

There's a lot of conversation about duty to consult and accommodating free, prior, and informed consent. I want to not so much deal with that as focus on some other questions. UNDRIP is a remarkable document. It is extremely comprehensive. We should all be very much aware of how broadly it is based in the needs and aspirations of indigenous people. There are a lot of articles that relate to things like improved health outcomes and education, and the protection and preservation of indigenous languages and cultures. When I look at this and see this as harmonizing these laws and actually making them mean something, just think for a second what it would actually mean for Canada, with more than 60 first nations and different languages across the country, if we actually took seriously the commitment to improve education, including in indigenous peoples' languages.

That is something we should have done 50 years ago. It's something we should have done 100 years ago. Now we have most of those nations' languages on the verge of destruction and disappearance. To just take that one issue and make it into a national priority would cost hundreds and hundreds of millions of dollars.

I'm very much in favour of what UNDRIP says about the right of self-government and a meaningful autonomy. When I think of what will actually make a difference for indigenous people, I see the re-empowerment of indigenous communities and nations with appropriate and equitable funding as being by far and away the most important thing we can have arise at the end of this, not necessarily more government programs.

One of the concerns I have about the bill is that it doesn't really outline a process for going forward and actually indicating the desired outcomes—how will we determine success? I share some of the concerns my colleague Dwight Newman expressed today about the possibility that UNDRIP could result in a rapid expansion in the legal context. If you actually look at this on a national scale over the last 20 years or 30 years, the fact that indigenous people have had no choice but to go to the courts repeatedly to fight for basic rights has had a huge impact on those communities. It has cost them hundreds of millions of dollars, without necessarily bringing the results and resolution we actually need and desire. The question is whether UNDRIP and its accommodation within Canadian laws change this dramatically.

I have another concern with this, and it goes back to when UNDRIP first came out. I work an awful lot with indigenous communities in northern Canada and across the west, and I go to talk to high school and university groups a lot. When UNDRIP first came out as a public document, there was great excitement because UNDRIP was so comprehensive and offered so many different things, promised so many different changes. My concern, and I ask you to take it very seriously, is whether Canada will once again over-promise and underperform regarding indigenous rights and entitlements. We have done so over and over again, and we have not broken that cycle. It's really interesting to think about these implications. Will this bill actually change this practice, or will it simply set us up for more evaluation and assessment over time?

We've had lots of commitments in the current government over the last couple of years: a statement of principles, a new framework for relations with indigenous peoples, a commitment to the rethinking of judicial processes. The latter I agree with very strongly. However, we've also had Cindy Blackstock's remarkable effort to expand social service support for indigenous communities and the fact that the battle went on for so long to address a problem that most people would recognize quite openly and consistently.

I guess the other part of this is whether indigenous communities can expect that UNDRIP would now set out operational priorities for Canada. How do we actually manage Canada under an arrangement that really does respect nation-to-nation relationships and the autonomy of indigenous people? I'm concerned that, through the annual reports, we'll now simply be annually reporting on what we haven't done, the fact that Canada has not actually responded to the opportunities before it.

I look forward either in this bill or in the subsequent implementation strategies that arise from this.... The references speak specifically to the security of existing negotiated agreements with indigenous peoples, to make sure that those agreements that have been already been put in place in good faith stay and continue on. More importantly, I'm really anxious to see that we have a commitment to a different way of making decisions in Canada. I'm in favour of what I describe as a co-production of policy. Co-production of policy is that when indigenous affairs are on the table, indigenous peoples are there as part of the process, and that when funding decisions are being made, you actually co-produce those funding priorities. It's not that a government, however well meaning, sort of sits back and does this from afar, but that it in fact negotiates with them directly.

I also would hope that, either in the presentation of this bill or in the bill itself, Parliament recognizes the complexity and potential cost of the UNDRIP commitments. To even go halfway toward meeting the obligations set out under UNDRIP would cost billions of dollars. I think it's money that we have to spend and we should have spent it a long time ago, but it will cost a great deal and take a great deal of effort to put in place.

As I look through this, I see we have an opportunity and obligation in Canada to tie all the various threads together. We have lots of things going on in the aboriginal space in this country. UNDRIP is part of the puzzle. We have the desire to build nation-to-nation relationships, the government statement of principles, the whole question of inherent and treaty and aboriginal rights, the completion of modern treaty processes, aboriginal self-government, the re-evaluation that I hope is the renegotiation of earlier treaties starting in the maritime provinces, the reform of judicial and conflict resolution systems, and the appropriate financing of indigenous services and infrastructure.

Will this bill move it in the right direction? I'm not so sure. I hope it does. I celebrate the spirit and aspirations in UNDRIP. I think the practical application is the part we have to focus on.

Let me just finish up with a quick observation. When governments make policy—not just specifically with aboriginal peoples but with all peoples in all policy areas—there are actually two elements. One element is the formulation of policy and legislation, the process that you honourable citizens are doing right now, bringing the legislation and passing it and basically declaring the government's intent, the intent of the Parliament of Canada.

The second part is the implementation of the policy. What do you actually do with it? What actually comes out the other end? We pay way more attention, as academics, policy-makers, and commentators, to the formation of policy and much less to the implementation. Without the second part, without focusing on implementation, if this bill comes into effect, if we are going to harmonize these laws, how are we going to do it, what is the time period, and what are the funding allocations? Will real change actually occur at the other end of this? Without that second level of conversation and discussion, UNDRIP will lose its effectiveness and become yet another sort of failed promise to indigenous peoples.

My overriding observation is simply this. Let's not set indigenous peoples up for failure at the hands of the Government of Canada again. We've done that too many times. We can change that trajectory and that agenda a great deal.

Thank you very much.