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.

[Professor Val Napoleon, Associate Professor and Law Foundation Professor of Aboriginal Justice and Governance, University of Victoria, As an Individual]

Thank you.

I'm delighted to be here. I've been crossing things out, so my presentation will fit within the time frames.

In addition to being a professor and research chair at the faculty of law at the University of Victoria, I'm also the director of the first-ever in the world indigenous law degree program, being launched this September at the University of Victoria.

The perspective I'm going to offer here today is that of indigenous law, and I'm going to be drawing on my research over the last several decades in order to do that. My presentation will be organized under two themes. The first is along the question of, do we need this bill? The second is, what does consent mean, and how might that be informed by indigenous law?

On the first theme of whether we need this bill, I believe it is a modest and positive step toward reconciliation. With its call for alignment and for an application of UNDRIP to federal laws, it lays a solid foundation for the future of reconciliation.

Canada has a colonial history. We all know that. Canadian legislation has not been immune from that history. While much more is required than Bill C-262 to decolonize Canada and to create space for indigenous governments, laws, and jurisdictions, the bill is a first step.

On this point, I want to mention that UNDRIP is not the source of free, prior, and informed consent, rather, FPIC is an international standard of measure for self-determination. In 2008, about 100 legal scholars and experts gave their support to UNDRIP, and they argued that UNDRIP was essentially a principled framework for achieving justice and reconciliation. Further, that it was entirely consistent with the Canadian Constitution and charter. The balancing provision in UNDRIP requires that its interpretation be according to principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance, and good faith.

On the meaning of consent, I want to bring up an indigenous legal discussion, which I believe will substantively and constructively inform the implementation of Bill C-262.

If we think about consent as a collective legal and political construct that arises from systems of law, including indigenous law, it creates obligations. All legal systems recognize, create, vary, and enforce obligations. Obligations are central to the social role of law, and being able to explain obligations is about explaining authority within law. At the very minimum, we can understand consent as the voluntary acquiescence to the proposal of another. We can understand it as an act or result of reaching an accord. We can think about it as a concurrence of minds, and a willingness to act or allow an infringement of an interest.

In other words, and this is what's most important, consent is an act of reason and deliberation.

From an indigenous legal perspective, we need to think about how consent is constructed within indigenous law, and the necessary standards for consent according to indigenous law. The opportunity and the challenge created by Bill C-262 requires us to think critically about questions of indigenous law and about legitimacy. My starting place is that indigenous law must be treated seriously as law. Indigenous legal orders comprise the full scope of law necessary for any society to manage its collective affairs, be they social, political, or economic. Historically, our peoples dealt with violence, lands and resources, family issues, human rights, business and trade, and international relations.

Here's the thing. We know that indigenous law has not gone anywhere in Canada, but it's been undermined, and there are gaps and distortions. It's not enough to know what law is. What's important is knowing what to do when the law is broken. This means that at the very least, an indigenous legal analysis must include the legal processes for a legitimate response to a harm, a conflict, or a problem.

We need to know who the authoritative decision-makers are. What are the legal obligations? What are the substantive and procedural rights? What are the guiding legal principles? What are the public institutions that law operates through, historically and in the present day? Being able to answer these questions enables us to know what the law is and how it should be applied to today's problems. All indigenous legal orders have the intellectual resources to enable people to engage in principled reasoning processes, and that is exactly what creates legitimacy, including for the law of consent.

What are the necessary standards for consent according to indigenous law? Consent has to be lawful, according to indigenous law. In our work with over 40 indigenous communities across Canada, we see some overarching patterns. For instance, Canadian law, as with indigenous law and other systems of law, is founded on aspirations—the want for people to be better than whatever their particular circumstances are enabling them to be. We never live up to these aspirations, but what's important is that we have an opportunity to try.

Across Canada, with the different peoples that we've worked with, the aspirations have included community safety; inclusion in decisions; fairness of process for those harmed, those who have done the harming, and others who are affected; dignity and agency, based on an understanding that people have free will to operate individually and collectively; as well as flexibility and consistency in response to human problems. These aspirations can be understood as standards for consent today. They add up to conceptions of justice deriving from indigenous legal orders.

There are five takeaways that I offer here.

First is that indigenous law of consent is essential, and ensuring that expressions of consent in instruments and in political arrangements are stable and enduring means paying attention to how those matter to indigenous law.

Second, we have in Canada spaces of lawlessness created by gaps in indigenous law where it's been undermined and by a failure in Canadian law, and it's been indigenous women and girls who have faced the violence those spaces of lawlessness have created.

Third, indigenous law hasn't gone anywhere, but the ground is uneven. The important work today is to rebuild indigenous law, and it's going to take just as much work as with any other system of law in the world.

Fourth, indigenous law will make Canada a better place in ensuring that there's a multi-juridical process of working out problems. Law is one of those distinct modes of governance.

Lastly, indigenous law must be conceived on a larger legal-order scale, and the rebuilding must include indigenous human rights from within indigenous legal orders as a part of indigenous governance.

Thank you.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

What I've been able to surmise.... Actually, this has been a perfect panel of taking the legalistic side of society and the nation-to-nation side of the argument.

Really, I guess I'd say that this is a black-letter law type of argument versus the political will side of the argument, a legalistically defined approach versus a nation-to-nation relationship defined approach, and Bill C-262 forces us to deal with this head on.

Would you agree with that?

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

Thank you, Madam Chair.

Thank you to all the witnesses today. I truly appreciate your contribution to our work on Bill C-262, as well as your comments. I think they're all helpful. I'm going to ask the same question to all three of you.

We've lived in a constitutional supremacy in this country since 1982. The rights in our Constitution—both in part I, the Charter of Rights and Freedoms, and in part II, the section 35 rights—the Supreme Court has recently said are sister provisions that serve to limit the powers of federal and provincial governments. That's the state in which we are today.

I have a very simple question for all three of you. Do you agree that the rights contained in the UN Declaration on the Rights of Indigenous Peoples are human rights? That's how they're viewed internationally.

Second, subclause 2(2) says that this legislation does not have the effect of delaying the application of the UN declaration in this country. Clause 3 talks about the UN declaration as being an “international human rights instrument with application in Canadian law.” These rights are said to be inherent, so they do exist because indigenous people exist in this country.

It's the same question to all three of you. I only have seven minutes, one crack at this, so that's why I'm asking the same question to all three of you.

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

I think you again flagged some things that I have addressed, whether it's Bill C-45, C-68, or C-69. This bill has significant implications for all those other three bills and that is something that I don't think we've perhaps looked at or addressed very well.

I do want to talk about Kinder Morgan because I think it's a pretty good example of some of the challenges that we have. I think a mining project is somewhat easy in terms of free, prior, and informed consent, identifying whose territory it's in and ensuring that the rights and titles are respected and acknowledged and the projects move forward.

You talked about concerns from your community, Mr. Richardson. I have chiefs who run down that pipeline and who are saying, “We took it to our community. They voted 85% for it. One-third of the pipeline is going through our territory.” We have communities along the whole pipeline route, and it's more than just the benefit agreements. They've taken it to their communities and 85% is not 100%, but it is significant.

What we have is rather like Canadians in general. We have a complexity of very strong feelings on this particular issue. How will government ever, if we have something like Bill C-262, align all those important considerations? Again, I look at the communities, the Shuswap people who are predominantly in one area.

It's difficult. It's complicated. I know we were grappling with it until midnight last night. It's important and I worry about where we're going to end up in terms of making sure we respect rights while still being able to move forward with things that are important for everyone who lives in this country.

Maybe we'll hear from Mr. Newman and then Mr. Richardson.

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

Thank you.

I certainly appreciate all the testimony we've had today. It doesn't matter your position on Bill C-262, I think the spirit of what we need to do lies with all parties in Parliament.

We're talking about Bill C-262, an important part of that path, or is there ultimately a better route forward in what we do?

In my opening speech on this, I indicated I was concerned that it wasn't government legislation because it didn't have drafters from the justice department. Mr. Newman, because it is a signatory commitment of the government, first of all, should it have been appropriated as government legislation?

I like the way you talk about the different interpretations of consent. You had it laid out into three different interpretations. Truly, I believe we should have a common understanding, or indigenous peoples should come to some kind of common understanding about that language, or is that going to have to happen after?

Again, Mr. Newman, could you speak to those issues? I have concerns about the interpretations. I think this should be government legislation.

[William Amos, Liberal, Pontiac, QC]

Thank you to our esteemed witnesses. It's really fabulous to have this panel before us.

I'm going to start by asking a question similar to Mr. Newman's and Mr. Richardson's, but from the flip side of the same coin. I'll ask you both to answer, one after the other, if you would.

Mr. Newman, I've read your brief. I appreciate your pointing to potential uncertainties, a series of prospective legal risks that you see may be associated with the language that has been advanced in Bill C-262. Clearly the members on this side, as well as member Saganash and our government, are very supportive of this bill, but I think that anyone who's looking at this clear-sightedly recognizes that there is going to have to be both governmental treatment as well as judicial treatment of whatever bill is enacted.

Looking at this as it is presently drafted, in a reconciliatory spirit what would you be recommending—and I invite you to make further written submissions—if you see a path forward? What mechanisms could be put in place in the context of this legislation to mitigate some of the uncertainties and to enable better interaction between existing constitutional protections for indigenous peoples and their rights, as well as through this legislation?

To Mr. Richardson I put the same question, but the other way around. I understand that there are people who are reticent, who are uncertain when they see this legislation. They don't know where it's going to take us, but as you said, we've seen the decisions one after the other, and your nation has been a leader in this regard for many years. How can greater certainty and clarity be provided to those who are concerned about writing a law into the unknown, as it might be expressed?

I feel as though I'm asking you to reconcile your positions right here and now.

[Miles Richardson]

I am Miles Richardson. I'm from the Haida Nation out on the west coast. I'm very pleased to be here today. I also acknowledge the Algonquin people, the Algonquin nation, on whose territory we're gathered today for this very important discussion.

I want to thank Romeo Saganash and all parliamentarians for this bill, which I believe is an important signpost on the road to righting the relationship between Canada as a nation-state and the indigenous people who were the first peoples of this place we all call home and we all call Canada today. In my view, it's high time that we did this properly.

We've been to this fork in the road before, and the fork in the road is very simple. There are two routes forward. Continue on the road we're on, the colonial road, the one of denial and assimilation through the instrument of the Indian Act and all those actions that the Truth and Reconciliation Commission has confirmed for all of us is the wrong path. We could continue on that path, I suppose. The choice of the other path is exactly the right path, in my view, which the Government of Canada has stated is the chosen path for Canada, and that's establishing a proper nation-to-nation relationship between each indigenous people and Canada as a state.

Bill C-262 is a signpost for that path which, in my view, is the correct path. In 1763, we began to face the same choice. In those days, first nations in this part of the country had a bit more leverage, I'd say, on Canada. You all know the story. Britain, in right of the crown, brought to Niagara Falls its commitment on a relationship with indigenous peoples, a relationship in which the crown committed that first nations would not be disrupted in our powers, in our authorities, in our interests, or in our jurisdictions without consent through a treaty with the crown itself.

That was the commitment that Britain brought to Niagara Falls. The 27 tribes, nations, on the east coast who then met with them brought their commitments, the Two Row Wampum and the Covenant Chain. The Haudenosaunee and others brought commitments that still would pass, I would say, the test of acceptance by first nations today. I've talked to my people. I've led a lot of our negotiations and our position in terms of being respected as a nation, and working with the constitutional framework of Canada is very much in line with the Two Row Wampum and those commitments that were made in Niagara Falls. I think those were honourable commitments that didn't last long.

Last year we celebrated 150 years of Canada, and very soon, as treaties 1 to 11 began being negotiated, Canada forgot those commitments and devolved to one of the first pieces of legislation of that Parliament, the Indian Act, and the policy of the denial of our humanity and of our fundamental human rights as indigenous people began. We get to the point we are today.

I would really appeal to all of you as parliamentarians to work together as the Government of Canada to implement this proper nation-to-nation relationship. Bill C-262 is a beginning, as my friend says. It can't be the end. This has to be a whole-of-government approach. There are going to be many discussions about the legislative implications and the relationship implications. The longer we put it off, the more uncertainty is going to breed uncertainty. We're going to face many more situations like we are on the west coast today, and that's just one of them. That's so predictable in this current climate.

As we go down this path of establishing a proper nation-to-nation relationship, we should be guided by the Truth and Reconciliation Commission's calls to action 43, 44, and 45, which you can all read.

Action 43 asks us to use UNDRIP and free, prior, and informed consent as the framework for reconciliation. That's a wise recommendation. When we look at nation-to-nation relationships, we shouldn't be turned off by the notion of consent. We're talking about respecting each other on an equal level, and I know my people, the Haida people, expect nothing less. We come to every table with that expectation and with the acceptance, as the wise judge said in the Delgamuukw case, I believe—in the Supreme Court of Canada anyway—that we're all here to stay and that we can make this constitutional framework, including section 35, which brings our indigenous law alongside the framework of Canadian law.

We can make this work, but it's going to take commitment. Because of all the nuances that we have to work through, the one thing it's going to take is political will. If you look at the courts in the last 25 years, there's a pretty impressive winning streak of first nations asserting our title, basically legitimizing the position our people have always taken, since contact.

What has changed? Very little. Do you know why? It's because Parliament and the legislatures have not done their jobs. Those laws amount to a hill of beans. You've been put in place as parliamentarians. Those laws, those decisions of the courts amount to a hill of beans if you don't enact them. Bill C-262 is another opportunity to do the right thing.

I was going to tell you a story about Sparrow and how that... I was on the B.C. claims task force, designing a treaty-making process for B.C. in the early nineties, while RCAP was holding its hearings. We had a notion in there. We had mutual recognition on a government-to-government basis, but as soon as first nations were recognized, we had to have interim measures to balance all the federal and provincial statutes that had never contemplated aboriginal title or right.

The Minister of Fisheries flew out to B.C. and met with the first nations. I remember that he said something like, “Look, I've got a problem. Six months ago, the Supreme Court of Canada handed down its decision in Sparrow. Indigenous people have fishing rights, and I need to do something about that. I want an interim measure.”

We started negotiating an interim measure, which turned into the aboriginal fisheries policy, which started out with really good intentions and very soon degenerated into the same old “we make the rules here in Ottawa; you stand up and get your portion”.

As we go forward again, Parliament failed a major opportunity and still the courts.... There was the Heiltsuk and the herring spawn decision in 1996, which was a pure victory. They have the right to sell. The Ahousaht decision a few years ago upheld their right to sell all the fish in their territories, and still they're sitting on the beach watching everybody else do it.

Now we see the Kinder Morgan pipeline being pushed through British Columbia. We're all going to learn something from this. You mark my words. We're going to learn a lot of lessons from this situation.

It's unfortunate. In the face of commitments to a proper nation-to-nation relationship and this relationship being the most important, the pronouncements of the last few days that “at all costs this pipeline's going through” to me are like a dog whistle to industry and to those who have kept marginalizing indigenous people all these years, signalling that indigenous, aboriginal rights still mean nothing in this country. If anything, they mean, “You indigenous people can have the scraps after we're done.” That's just not the way to move forward.

Bill C-262 is a signpost to the proper way. It's going to take a lot of effort, it's going to take a lot of commitment on all of our parts, but it's the right way to go.

I'm really interested in hearing Val Napoleon's presentation later, after we're done, on indigenous law. If we can't do this through negotiations, this is how indigenous people are going to have to achieve our justice: through implementing our laws and figuring it out as the dust settles, I imagine.

Thank you, Madam Chair. I look forward to any further discussion.

[Dr. Dwight Newman, Professor of Law and Canada Research Chair in Indigenous Rights, University of Saskatchewan, As an Individual]

Good afternoon. It's an honour to speak with this committee as it studies Bill C-262. I'd also like to acknowledge the Algonquin people on whose territory this meeting occurs.

My name is Dwight Newman. I'm a professor of law and Canada research chair in indigenous rights in constitutional and international law at the University of Saskatchewan.

I come here today with full respect for the very noble aspirations reflected by Bill C-262 and the passion and lifelong advocacy efforts of the member who has introduced it, the support for the bill by many civil society organizations, and the profound importance of Canada working to implement the aspirations reflected by United Nations Declaration on the Rights of Indigenous Peoples.

However, I am going to say something different than some of the other witnesses. I do come to say that I think Bill C-262 as presently drafted is framed in ways that have the potential to cause enormous unforeseeable consequences. It has a range of highly unpredictable legal effects due to two things: elements of uncertainty on the international norms referenced, and legislative drafting issues in the bill itself.

In the next few minutes I'll try to introduce some of those, although I'd also refer you to my written brief for further reference, particularly on some of the legislative drafting issues.

I would suggest that the range of possible implications of this bill is very wide, from courts giving it no effect at all on through to the courts giving it massive, unexpected effects that could inadvertently cause governance gaps, for example, by the potential implied repeal of existing statutes, on through to legal effects that could depend in complicated ways on the order in which different bills currently under consideration in Parliament are passed.

I'll explain some of that momentarily, but my ultimate question is whether it wouldn't be better for Parliament to determine what, more precisely, it's trying to do and to enact a clear bill to do exactly what it's trying to do.

In my few minutes, I'll make three main points: one related to the substantive content of UNDRIP, one related to the drafting issues in the bill, and then a third one, quickly suggesting the need for further analysis by other committees.

First, the substantive content of UNDRIP is itself subject to more debates than often realized, and a statute drawing upon the declaration is no less subject to uncertainties that arise from these ongoing debates. To offer just one prominent example, a number of articles of UNDRIP refer to the concept of free, prior, and informed consent, or FPIC. Some of those articles of the declaration refer to a requirement to have FPIC before taking certain steps, and others refer to consulting and co-operating in order to seek FPIC. The first special rapporteur after the declaration was adopted, Professor James Anaya, attributed significance to that difference and suggested that a spectrum of different duties arose in relation to different articles.

In the years since, in general terms, in international law scholarship, three main interpretations have emerged in relation to the declaration on FPIC. There's an ongoing, growing literature, but I might mention Mauro Barelli's chapter in the new Oxford commentary on UNDRIP, released this year, as a particularly helpful piece in outlining some of those concepts.

One interpretation reads the text more strictly and says that in some circumstances, the declaration says it's enough to seek FPIC in good faith without necessarily obtaining it. I've suggested that this is the implicit position that Canada's 10 principles document, issued last summer, took somewhat slyly, as I put it in an op-ed. It's arguably that interpretation, though, that is most consistent with the French-language version of UNDRIP, and with one possible interpretation of the English-language version.

A second interpretation says the FPIC requirement is really about the type of process required and that it's possible to move away from talking about consent itself as long as one has the right type of consensus-oriented process. That interpretation fits with the approach of many practitioners who are trying to work with FPIC in practical ways.

A third interpretation sees FPIC as grounding rights analogous to vetos, and that interpretation is, and continues to be, urged by many indigenous advocates. A prominent Canadian example would be found in articulations by the scholar Pam Palmater.

In the context of Bill C-262, just which of these interpretations filters through from UNDRIP has drastically different legal consequences that matter. Not knowing that poses difficulties for everyone.

We've seen in the events of the past week around the Trans Mountain pipeline how legal uncertainty can affect the investment climate that can contribute to prosperity for both indigenous and non-indigenous Canadians, though obviously in the context of a project on which people have many different views.

My main point is that legal uncertainty doesn't help anyone, and this bill may draw Canadian law into new uncertainties coming from uncertainties around the interpretation of UNDRIP itself.

Second, the bill as presented has significant issues from a legislative drafting perspective, which I highlight at more length in my written submission, but I'll mention some of those briefly.

One, it uses a number of legal terms that have either no, or almost no, prior use in Canadian statutes, meaning that one's essentially gambling on how the courts might interpret those terms. That might render the whole bill merely symbolic at one end or it might lead to it having very significant effects, or anything in between.

Two, the different sections of the bill are subject to some tensions as to whether it requires immediate implementation, whether it requires implementation over a multi-decade period, or something in between. That could undermine clarity of meaning.

Three, the English and French versions of the bill may not line up in terms of their language. The French versions of terms from the English side are not the same as the French terms used for the same English terms in other pieces of legislation, again suggesting that there may be more drafting issues to be carefully considered.

Four, the way in which the bill may interact with other statutes or bills gives rise to some real complexities. I go through that in what is probably painful legal detail in the brief, but I suggest that if the courts were to give the bill substantial meaning, it could lead to the implied repeal of other statutes, or provisions of other statutes—maybe the Indian Act—overnight, in a manner that could lead to governance gaps and legal vacuums. That's not the way to abolish the Indian Act, which should of course be done but needs to be done in a clear way that doesn't generate problems in the process for indigenous communities who use its governance structures.

I also raise the prospect that because of the underlying legal principles on dealing with multiple statutes enacted by Parliament, the meanings of Bill C-68, Bill C-69, and Bill C-262, if all passed, could end up being significantly different, depending on the order in which they're passed. With respect, there needs to be a coherent plan and clearer legislative drafting to address some of these issues.

Third, just very briefly, Bill C-262 has the potential and indeed the aim to affect a huge range of areas of Canadian law. Is this committee alone well placed to consider the effects on Canada's intellectual property regime of something like clause 3 in the bill? Is this committee alone well placed to consider the implications on various religious freedom contexts arising out of UNDRIP?

My written brief lists some of the very wide areas of policy-making that could be impacted if the bill is adopted, and indeed the bill hopes to affect. With respect, it's analogous to an omnibus bill, which I would suggest could warrant attention from almost every other committee of Parliament. I would urge that there be some kind of further consideration of those effects.

In conclusion, my overall view is that Bill C-262 warrants further study and careful analysis. The legislative drafting does not meet all of the standards that we would hope for in the best legislative drafting of a bill on behalf of indigenous peoples to support a better relationship between indigenous peoples and other Canadians. There are a range of highly unpredictable effects across almost every area of government policy, and those deserve study. There could well be amendments that could improve the bill, but they need to be developed with legislative drafting expertise of the sort that the justice department has but presumably hasn't provided enough of in support of this committee at this point.

The government has committed its support, but I would hope that we would see further tangible results in terms of the details of the bill, and that there would be that legislative drafting support so that the government's commitments to implementing UNDRIP are realized in the way that best fulfills those.

I urge that the committee call for more support for its work in examining this bill and not rest with brief statements that have been offered by the justice officials who have appeared before it thus far.

Thank you for your attention, and I'm happy to discuss matters further in questions.

[Paul Chartrand, As an Individual]

Thank you, Madam Chair.

In light of the nature of the subject, I should say a few words about me and my background. I'm a Michif person from Manitoba. I'm one of 12 children of a Métis trapper, fisherman, and carpenter. I was born in 1943. I've seen life in very different circumstances from what we live today. I am a retired professor of law, a practising lawyer, and I spent some 28 years, on and off, participating in deliberations in Geneva on the UN declaration.

I shall comment on three basic points today. First is the matter of interpreting the text of the declaration to apply it in Canada. I'm arguing against the formalistic approach. I will also argue the need for a rational and defensible federal recognition policy respecting the section 35 aboriginal peoples. Finally, I will suggest that the federal Royal Commission on Aboriginal Peoples, which reported in 1996, ought to be considered in designing the plan of action contemplated by Bill C-262. That was a commission, I must disclose, of which I was a member.

First, on interpretation of the text I begin by emphasizing the important statements in the preamble of the bill that treaty and aboriginal rights as well as human rights are underlying values and principles of the Constitution of Canada. Therefore, we know that no foreign ideas are being introduced here. Canada's initial hesitancy and refusal to adopt the declaration was a rather shameful retreat from what a friend and colleague described as Canada's international image: that of a boy scout. The image had been garnered by Canada's efforts internationally since the days of Lester Pearson, as you will know. It seems to me that the adoption of Bill C-262 would help to wash the mud off the boy scout's face.

Pardon me for reading some of these notes verbatim. It helps me not to yield to my propensity to act as a didactic twit, given my long career in universities.

Opposition to adoption of the declaration seems to lean, at least in the public eye, upon reasons that flow from a formalistic approach to its interpretation. The exegete must not be seduced by a close scrutiny of each word in a text. Let us keep in mind that the text of the declaration exists in six official and very different languages. The interpretation of the declaration requires throwing away the looking glass of the formalist approach, which examines each word or phrase in isolation. In each case, we must consider the relevance of all the various human rights standards evident in the declaration, as well as elsewhere in international law, and apply them to Canadian circumstances.

A realist approach to interpretation will seek to apply to each domestic situation engaging state-indigenous relations the principles and the values behind the declaration, infused as they must be with the values of the indigenous peoples to which the facts draw attention. The question is about how the human rights standards, viewed holistically, ought to apply to the facts of each case. The issue is not so much what the declaration says, but what it means.

Canada must begin to accept the existence of power and authority residing in various sources. I emphasize that the purpose of the declaration is to guide state-indigenous relationships. Consequently, after some time, after Canada has adopted the declaration and implemented Bill C-262, if we have focused upon the values and the purposes of the declaration, I believe that interpretative approach would allow us to say, “Well, we're getting along better now, aren't we?” Is that not the true object?

My second point is that Canada must adopt a defensible policy to recognize the aboriginal peoples, in section 35, and to perform its constitutional duty to make those rights effective.

Who are the aboriginal peoples? I have a book with that very title. Nobody on the indigenous side wanted to touch this question in Geneva. Some states were reluctant to accept the declaration without a definition. My point here is that adoption of the declaration will add little to the promotion of an understanding of the issues here, and it's a very vexed issue.

The most salient issues are reaction to the 1982 recognition of the rights of aboriginal peoples. Our problem lies in history, in Canada's traditional policy, which has been rooted in the Indian Act. Unilaterally, in a breach of treaties, this act purported to offer legal recognition to Indians. The problem is that the Indian is a ghost of the European imagination.

Canada's aboriginal peoples, the ones who have been here aboriginally or since the beginning, are the Mi'kmaq, the Tlingit, the Cree, notably the Haida, and so on. The descendants of some of these aboriginal peoples who have not been recognized in the act are trying to fit themselves into the category of section 35, aboriginal peoples.

The name that's been applied to these people historically has been non-status Indians. Their situation has been obscured by the large number of claims from self-identifying mixed-blood peoples across the country since the 1980s. As the courts have held, section 35 affirms rights that are based on historical state-indigenous relations of peoples, not upon personal antecedents. One of the points is that the consultations that have to occur under Bill C-262 must keep these points in mind.

My final point concerns the national action plan with consultations. A serious look should be given to the analyses and recommendations of the Royal Commission on Aboriginal Peoples. Even the recent Truth and Reconciliation Commission recommended a royal proclamation as a good symbolic start. The federal government itself reorganized its structures by splitting into two departments. I have a commentary in public media on that point.

A first ministers' conference is necessary, because the provinces must be engaged in order to make the Constitution and the treaties effective, and to make the Constitution legitimate. New institutions will have to be designed. I can't think of a more important one than the model of the lands and treaties tribunal. I really urge you to have a look at volume 2 of the RCAP's analysis, which leads to the recommendation of an aboriginal lands and treaties tribunal. The specific claims policy and its related policies really do not work, and they ought to be rejected.

I will yield to the time constraints, Madam Chair.

[The Chair, Liberal, MaryAnn Mihychuk]

This is the meeting of the INAN committee on a very serious issue, one that will move Canada forward in terms of reconciliation in dealing with historic wrongs. I'm very pleased to have you here.

I'll start by recognizing that we are on the unceded territory of the Algonquin people, as a reminder of the importance of that process as not only being honorary but actually reminding all Canadians of our history and the fact that we have a lot of unfinished business. This is a very timely and important discussion and we're very anxious to hear from you, pursuant to the order of reference of Wednesday, February 7, 2018, on 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.

You're here to present to us and our format is that you have 10 minutes for each presentation. After that, we'll go into a series of questions and answers from the MPs.

Paul, are you going to begin? Then I have Dwight after that.

Welcome.

[Chief Kluane Adamek, Interim Regional Chief, Yukon Region, Assembly of First Nations]

Good morning.

[Witness speaks in Tlingit and Southern Tutchone]

My name is Kluane Adamek, and I am from Kluane First Nation in Yukon Territory. I am the Interim Yukon Regional Chief. I introduced myself in Tlingit and Southern Tutchone. I come from the Dakhl’aweidí killer whale clan and my traditional name is Aagé.

Our territory in Kluane First Nation also encompasses Kluane National Park, which many of you may have been to.

This morning, I am pleased to be here on behalf of the Assembly of First Nations. To members of the committee, thank you for inviting me here today to share the perspectives of the Assembly of First Nations on Bill C-69, an act to enact the impact assessment act and the Canadian energy regulator act, to amend the Navigation Protection Act and to make consequential amendments to other acts.

In the next 10 minutes, I am going to speak about three things.

First, I will speak to first nations participation in the environmental and regulatory reviews, the mandate of the chiefs and assembly, and the role of the AFN in this regard. Second, I will talk about perspectives on framing where we are and why we feel we must continue to press for reconciliation, given your commitments to the United Nations Declaration on the Rights of Indigenous Peoples. Third, I will speak about the 10 principles and the rights recognition framework, and propose critical amendments to improve on the reforms that have been tabled by the government in this part of Bill C-69.

With cautious optimism, in 2016, first nations overwhelmingly participated in the legislative reviews that laid the foundation for the bill you have in front of you. This work illustrates how first nations envision the complete overhaul of key environmental legislation and regulations.

Concepts such as jurisdiction, inherent and constitutionally protected rights, nation-to-nation relationships, and reconciliation come up over and over again. Unfortunately, many of these concerns are not yet addressed in the current legislation. Issues such as maintaining ministerial or cabinet decision-making and approving major projects using a public interest test remain red flags for first nations and the proposed nation-to-nation relationship. Moreover, from the perspective of many Yukon first nations and other self-governing nations, these provisions are inconsistent with our expressed jurisdictions and agreements, which languish with the failure of Canada to fully invest and respect commitments to implementation.

As a result, Bill C-69 does not withstand an analysis using the 10 principles respecting the Government of Canada's relationship with indigenous peoples. We recommend that the government ensure that the legislation is a beacon for all of Canada to signal that we are in a new era, where first nations rights, interests, and jurisdictions are promises kept by this government, not ignored and not overlooked. This would serve to support that reconciliation called for by the TRC, including observing and implementing the UN Declaration on the Rights of Indigenous Peoples.

Chiefs and assembly have passed numerous resolutions about this process, calling on the AFN to work with Canada to ensure the legislation respects first nations treaties, rights, title, jurisdiction, agreements, and recognizes the responsibilities to their traditional territories. However, the chiefs also made it very clear that any phase in this engagement process cannot be construed as consultation, and additional time must be afforded to consult directly with rights holders in a manner that is respectful to their unique protocols, processes, and elements.

To be clear, AFN plays a role in communication, coordination, and facilitation for first nations across the country, but we are not a rights holder.

Before I get into the specific amendments, I want to start by framing where we are and why this is an opportunity for real reconciliation. First, as you are all aware, Canada has announced its full and unqualified support for the UN Declaration on the Rights of Indigenous Peoples. This doesn't create any new rights, as these rights are inherent and pre-existing. The UN declaration simply affirms indigenous peoples' human rights. However, this does not mean that Canadian law, even the common law, is meeting these minimum standards, and we are committed to work with you on that effort.

Legislators should not forget that they are here to legislate about section 35 as well, and that we have been frustrated by government officials telling us this law includes common law standards, without clear legal language that pushes our rights forward. Across government, including Bill C-262, we are talking about realizing those rights and finding a better way to work together, so that we don't have to spend millions of dollars and waste years fighting in courts.

Indigenous lawyers are discussing how the bill could be strengthened to assist the inevitable judicial reviews because of the continuing use of a public interest test and the regulatory choice of a project list. To be clear, we are not satisfied with these policy choices, but we realize that real legislative time limits require us to make this bill a workable law that will actually achieve free, prior, and informed consent.

This bill must enable first nations to realize our rights and fulfill our responsibilities. It's about working with us to establish the laws, policies, and practices needed to respect our rights and our status as self-determining peoples.

Inevitably, the conversation will slip to the challenge of achieving the standard of free, prior, and informed consent, FPIC. To be very clear, FPIC was not created in the UN declaration. It was not created in this bill nor in Bill C-262. It already exists [Technical difficulty—Editor] in treaties in Canada. It is an essential element of the right of all peoples, including indigenous peoples, to self-determination, which Canada has recognized for decades, for example, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Consent is the essence of mature relationships and was and is the premise of treaty-making between self-determining nations.

The UN declaration set the standard [Technical difficulty—Editor] of partnership, detailing the right to participate in decisions that can affect our rights, property, culture and environment, and our [Technical difficulty—Editor]

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

To Marie-Claude and Valerie, I saw that one of your questions was about how these rights will be given life. With the exercise we started over a month ago on recognizing and trying to define the rights in section 35, I see that as breathing life into UNDRIP, and Bill C-262, which we are talking about today, as one of the first steps we have to take.

[Marie-Claude Landry, Chief Commissioner, Canadian Human Rights Commission]

Good evening.

I would like to begin by acknowledging that we are meeting on the traditional territory of the Algonquin people.

Thank you for inviting the Canadian Human Rights Commission to take part in your study into Bill C-262. I'm joined today by Valerie Phillips, the commission's general counsel.

Allow me to briefly tell you about the Canadian Human Rights Commission. Internationally, we are recognized as Canada's human rights watchdog. Domestically, we promote and protect human rights in Canada.

As part of our protection mandate, we receive and assess human rights complaints that relate to federal jurisdiction, and once we assess them, we determine if a complaint is referred to a separate body, the Canadian Human Rights Tribunal, for adjudication.

The commission embraces the declaration and supports this bill as an effort towards ensuring that human rights justice is available to all indigenous peoples in Canada. Implementation of the declaration moves us all towards greater reconciliation.

Testimony you have heard or will hear from indigenous peoples is of capital importance. The commission would like to offer a unique perspective—a perspective nourished by our experience and our work with indigenous people.

As an early adopter, the commission has integrated the declaration in all aspects of its work, such as its training of employees, its pleadings, its public statements, its publications and its work in policy development.

Integrating the declaration in our work is done in an effort to further the goals of this important human rights instrument. More specifically, it's a matter of normalizing its use in Canadian law and society.

Over the past 10 years, since the repeal of section 67 of our act, 9% of the commission's complaints have involved indigenous people or issues. The declaration deals with the principles of equality and non-discrimination that parallel the Canadian Human Rights Act.

As a result, numerous litigations have been impacted by the declaration, most notably the First Nations Child and Family Caring Society v. Attorney General of Canada (Representing the Minister of Indian Affairs and Northern Development Canada).

Based on this experience, we have two questions for your consideration. First, who will have access to these rights when the bill is passed? Second, how are these rights given life?

First, when this bill is passed, will it be clear who has access to these rights? At first glance, the answer may appear obvious—first nations, Métis, and Inuit peoples—yet issues surrounding indigenous identity are a source of continuous, lengthy, and costly litigation.

Over the course of the last 10 years, the commission has dealt with approximately 160 complaints that touched upon indigenous identity issues, engaging matters such as band membership, legislative benefits or rights, and status. These complaints can be lengthy and oftentimes very complex.

This is also evidenced by the numerous challenges to the Indian Act, the Daniels case, and an older Supreme Court decision about whether Inuit people fell under federal jurisdiction. What distinctions, if any, are to be made regarding first nations, Inuit, or Métis peoples? Clarification of this issue should be made a mandatory requirement in the national action plan or in the framework on the recognition and implementation of rights announced by the federal government in February 2018.

A second question we have relates to how the rights embedded in the declaration will be made available to the rights holders. If the UN declaration informs the content of section 35 of the Constitution, then rights holders will be able to assert these rights through a variety of court processes and administrative tribunals. However, our experience has been that proving these rights under section 35 has been an uphill battle for indigenous peoples.

We are concerned that this high onus will create a barrier for those seeking to exercise their rights as articulated in the declaration. If the goal is to ensure broad access to these rights, then clear language should be added to the legislation specifying how rights holders can access their rights.

It is our position that these rights should be made broadly and proactively available to all indigenous peoples and should be easy to access, and that there should be clarity to the scope of these rights and how they will apply in Canadian law. Greater and easier access to justice is a key component of human rights justice and, one could argue, of reconciliation as well.

These two questions—who is covered by these rights and how—may strike you as more theoretical in nature, yet our experience has clearly shown that organizations like the commission continue to struggle with them.

Article 1 of the declaration speaks of both collective and individual rights protection. From our perspective, concrete guidance is needed to relieve the tensions between collective and individual rights. This includes the universality of human rights protection as it relates to indigenous self-determination and self-government.

The clearer Parliament can make the application of rights, the more likely these rights will be accessed. We know this because easy access to justice has not always been the case.

In 2008 a significant barrier was lifted, giving indigenous people the ability to make a discrimination complaint under the Canadian Human Rights Act when it relates to the Indian Act. Up until then, there had been a 30-year ban on these kinds of complaints.

Yet since these changes to the act were made, there has been ongoing litigation about the scope of these rights as they apply both to the federal government and to indigenous governments. This past year, the commission argued the Matson and Andrews case before the Supreme Court of Canada, which touched upon all of these issues. We are awaiting this important decision, because it will address the question of Parliament's intent regarding the commission's ability to accept complaints related to a person's Indian status.

In conclusion, one thing we know after 40 years of human rights experience is that people living in vulnerable circumstances will often abandon their complaints rather than fight these lengthy legal battles. Time, cost, access, and lack of clarity all serve as barriers and may prove to be counterproductive to the ultimate goals of the bill.

The commission is eager to see the full potential of the UN declaration realized. Our experience in integrating it into the core principles of human rights justice has been positive and will continue to guide our work.

Madam Phillips and I are happy to take any questions you may have. Thank you very much.

[Craig Benjamin, Campaigner, Indigenous Rights, Amnesty International Canada]

Good afternoon. My name is Craig Benjamin. I am here on behalf of Amnesty International. I'd like to begin by acknowledging the Algonquin people, whose traditional territory we have the privilege of meeting on today.

I'd like to thank the committee for this opportunity to speak with you today on such an important subject, one about which I feel very strongly.

The adoption of the United Nations Declaration on the Rights of Indigenous Peoples more than 10 years ago, on September 13, 2007, was an extraordinary moment in the global history of human rights. Here is an international human rights instrument specifically dedicated to ensuring the survival, dignity, and well-being of individuals, families, communities, and nations around the world that have been the subject of extreme systematic and pervasive violation of every right imaginable, resulting in situations of impoverishment, marginalization, and dispossession that are the tragic and appalling shame of the global community.

Despite the ravages that have been inflicted, here is a progressive, inspiring human rights instrument that was developed through the expertise, advocacy, and persistence of indigenous peoples themselves. In fact, the UN declaration represents the first time in the history of the United Nations that the very people whose rights are at stake, the very people who best understand the patterns of abuse that put their lives and cultures at risk, were able to sit down with representatives of states like Canada and consider how the international human rights system could be adapted and applied to meet their most urgent needs.

I'm a member of Amnesty International's campaign staff in Canada. I'm responsible for the research, policy, and advocacy work that helps our organization and our membership across Canada and around the world stand as allies in the promotion of the human rights of first nations, Inuit, and Métis individuals and communities. My job most days is to help call out the pervasive and profound injustices that have so often characterized Canada's treatment of indigenous peoples.

However, today I want to emphasize that the adoption of the UN declaration is a story in which Canadians can take genuine pride. I had the opportunity to represent the global movement of Amnesty International in the concluding years of the development of the declaration at the United Nations. I saw for myself the crucial role played by indigenous experts from Canada: people such as Romeo Saganash, Grand Chief Edward John, Celeste McKay, and Grand Chief Wilton Littlechild, who also addressed the committee. I saw the important supportive role played by Canadian non-governmental organizations such as the Canadian Friends Service Committee and Rights and Democracy.

I also witnessed the critical role played by Canadian government officials in the final days of the negotiation, when federal government representatives at the UN working group were able to build an effective working relationship with indigenous peoples from Canada and with the global indigenous caucus to help advance the declaration.

This collaboration set a positive example for other states. It made visible the spirit of the declaration and its repeated calls for partnership and collaboration, and it allowed this spirit of co-operation to triumph over the rigid defence of the status quo that had locked many other states into unconstructive, adversarial positions.

The text that eventually emerged was the product of the consensus reached between states and indigenous peoples. This consensus, this hard-won achievement, is also part of what makes the declaration so powerful and so important today. It's only fitting, then, that with Bill C-262, Canada again has an opportunity to set a positive example for the rest of the world.

Amnesty International has endorsed Bill C-262, and we commend all those members of Parliament who have supported it so far. Bill C-262 sets out a principled framework by which the promise of the UN declaration can be brought to life in Canada. The elements of the bill, a legislated commitment to reform laws and policies, to elaborate a national plan of action for the implementation of the declaration, and to ensure regular reporting to Parliament, are exactly what international human rights bodies like the UN Committee on the Elimination of Racial Discrimination have called on Canada to do.

Just as important, Bill C-262 sets out a framework for collaboration between the Government of Canada and indigenous peoples in this important shared work. This is wholly consistent with the spirit in which the declaration was developed, and it now takes that work to the next logical and necessary step. Bill C-262 is about how the declaration will be implemented in Canada, the principles that will guide this implementation, and the relationships among indigenous peoples, government, and Parliament necessary to do this in the best way.

Critically, the passage of Bill C-262 is not about a choice of whether the UN declaration will be implemented in Canada. That work has already begun. Canadian courts and tribunals routinely turn to international human rights standards to help understand how the laws passed by Parliament can be best interpreted and applied. It's a well-established Canadian legal principle that courts can and should presume that Parliament intends to honour Canada's international obligations, and that domestic laws must be interpreted in a way that complies with these obligations.

These are principles that are already applied across a wide range of law in Canada. There is no reason that the United Nations Declaration on the Rights of Indigenous Peoples should be excluded. In fact, the declaration is already being used in exactly this way.

To take one example, in 2012, as part of the long legal battle in a case well known to this committee, the first nations child welfare case, the Federal Court of Canada explicitly stated that the UN declaration should be used in the interpretation of the Canadian Human Rights Act and the federal government's responsibilities under that act.

After the first nations child welfare issue went back to the Canadian Human Rights Tribunal, many of the parties to that case, including the Canadian Human Rights Commission and Amnesty International, made arguments based on the interpretation of the declaration. In its final ruling, the Human Rights Tribunal did in fact make significant use of the declaration. In its discussion of the declaration, the tribunal also made this statement, which I think is particularly relevant to today's discussion. The tribunal said, “Canada’s statements and commitments, whether expressed on the international scene or at the national level, should not be allowed to remain empty rhetoric.”

There are numerous other examples of how the declaration is already helping shape how the laws passed by Parliament are interpreted and applied. For members of Parliament interested in better understanding the declaration's provisions on free, prior, and informed consent, there is an excellent summary in a 2014 report from a federal impact assessment panel, one that reviewed the proposed New Prosperity mine in British Columbia. That panel appropriately took note of the fact that the Tsilhqot'in Nation had withheld their consent. It took that lack of consent into consideration in its finding that the mine would have serious impacts on their lives and culture.

We can anticipate that Canadian courts, tribunals, and other bodies will continue to play a role in interpreting and applying the declaration in the future, but there are obvious drawbacks if indigenous peoples have to continue to rely on such mechanisms as the primary way to give effect to rights and protections set out in international law. Chance can play a large role in deciding what issues end up before the courts. Legal and administrative hearings can be extremely slow and costly to all involved. Requiring indigenous peoples to go to court if they want their rights respected imposes an onerous and unfair burden, and such processes are inherently adversarial, something that runs contrary to the intention of reconciliation.

Bill C-262 provides an alternative: an opportunity for a collaborative process in which priorities can be mutually agreed and systematically advanced, where Parliament will remain apprised of the progress made and the government will be held accountable. This is a model that's not only needed in Canada; it's one worth promoting to the world.

Finally, on that note, Canada should not interpret and apply the UN declaration in isolation. Other countries are also grappling with its implications. International mechanisms, such as the UN Special Rapporteur on the rights of indigenous peoples, the UN Permanent Forum on Indigenous Issues, the UN Expert Mechanism on the Rights of Indigenous Peoples, and treaty bodies, all continue the work of interpreting the standards that are set out in the declaration. While Canada has the potential to set a positive example for the world, Canada also has much to learn from these processes.

Thank you.

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

You're so generous.

[Member speaks in Cree]

I respect that you have a time limit here. I'll be very quick with my questions.

Subclause 2(2) and clause 3 of Bill C-262 declare that the UN Declaration on the Rights of Indigenous Peoples has application in Canadian law already. Do you agree with that?