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.

[National Chief Perry Bellegarde]

I would hope that they would see a gap being closed, the gap that exists between indigenous peoples and non-indigenous peoples in Canada, because you're going to create economic certainty and economic stability, and you're also going to create greater involvement by indigenous peoples in the economy, with a balancing of the environment and the economy with our full involvement and inclusion.

The gap that I continue to talk about and needs to be addressed and closed is the “sixth versus sixty-third” gap. According to the United Nations human development index on quality of life, Canada is rated sixth, but when you apply the same indices to indigenous peoples, first nations people, then we're sixty-third. That's sixth versus sixty-third.

For the Algonquin people and the non-indigenous people in your riding, you can say to them that once Bill C-262 is adopted, and once the UN Declaration on the Rights of Indigenous Peoples is fully embraced, endorsed, adopted, recognized, and implemented, you will see a greater involvement of indigenous peoples in the economy. You'll see greater participation by and success rates for young first nations men and women who are graduating from high school, because proper education will be in place. This gap will start to close.

That's the really meaningful outcome and output of the adoption of Bill C-262 and the UN declaration. It really truly is a road map to reconciliation. I've always said that in this country nobody is going anywhere, so we have to find ways, roll up our sleeves, do the tough work of dialogue, and find that common ground. That's what I'd say to them.

[National Chief Perry Bellegarde]

Not directly, but Romeo had an extensive consultation process across Canada on his own. He's been to numerous tribal councils and PTOs, and there have been resolutions of support passed. We didn't have to do anything. He did all the work.

However, we did discuss and pass it in our AFN chiefs assembly as well, so there is a clear indication of levels of support from leadership across Canada for Bill C-262.

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

You've acknowledged the work of our colleague Romeo Saganash. Can you advise us in terms of consultation in developing this legislation? Did the AFN and your members play an integral role in developing Bill C-262?

[National Chief Perry Bellegarde]

It's a good question, MP Gary. I think we've said that it's a start, a beginning. At least adopt this. Going forward, you can build upon it. That's the simplest and shortest answer I can give. It's a good start.

We know from the February 14th words of the Prime Minister that the rights and reconciliation framework is going to be worked upon, but this is something that's here now, so you can use that and build upon Bill C-262 going forward.

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

Thank you, Madam Chair. I'll be sharing my time with MP Amos.

Grand Chief and panel, welcome back to the committee.

I'd like to start with respect to an overall framework for the implementation of UNDRIP. Is Bill C-262 as a stand-alone enough? Or do we need other measures in order for us to fully implement the provisions of UNDRIP?

[National Chief Perry Bellegarde, National Chief, Assembly of First Nations]

Thanks, Madam Chair, and thanks, Gary, for that attempt. I have another function, but I'll get right into this, Madam Chair.

[Witness speaks in Cree]

I'm happy to be here thanking you all.

[Witness speaks in Cree]

I give thanks to the Creator for this day.

Also, we acknowledge the Algonquins, the Anishinaabeg peoples, and give them thanks as well.

To the members of the committee, I do have this written text, so we'll get right into this.

Madam Chair, members of the committee, friends, and relatives, thank you for inviting me here today to share the perspectives of the Assembly of First Nations on Bill C-262, the United Nations Declaration on the Rights of Indigenous Peoples act.

First nations across the country strongly support a legislative framework to advance the implementation of the UN Declaration on the Rights of Indigenous Peoples and support Bill C-262. We have waited a long time for this. We continue to call on all parties in this House and on each and every parliamentarian to support Bill C-262.

At the end of my presentation, I will suggest a few amendments to enhance the text and to reflect the current text, but I want to start by making a few simple points.

The United Nations declaration doesn't create any new rights. Neither does Bill C-262. These rights are inherent, and they're pre-existing. The UN declaration affirms indigenous peoples' human rights. What we're talking about now is realizing those rights, implementing those rights, and enforcing 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 instead of advancing reconciliation. Closing the socio-economic gap for first nations and building a stronger economy and a better Canada for us all is what this means.

This bill is about working with first nations to realize existing rights. 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, replacing the laws, policies, and practices that have denied our rights for decades and have led to the socio-economic gap we are working to overcome today. This bill is reconciliation in action—real reconciliation—and this is where the rubber meets the road and actions replace words.

The chiefs in assembly have passed numerous resolutions calling on the Assembly of First Nations to work with Canada to advance the full implementation of the declaration. They support this legislation. They support the co-development of a national action plan, as required in this bill and by call to action number 44 of the Truth and Reconciliation Commission's 94 calls to action, which Canada has pledged repeatedly to fulfill.

Prime Minister Trudeau, Minister Wilson-Raybould, and Parliamentary Secretary Yvonne Jones have all affirmed the government's support for Bill C-262.

Bill C-262 will provide momentum and a plan for implementing the UN declaration in Canada, working with first nations in an orderly and timely way. This is something that Canada has repeatedly committed itself to do under several UN resolutions, including the declaration itself.

Passing this bill will advance Canada, as well as first nations peoples, in many ways. It will implement key aspects of the TRC calls to action. It will see Canada move forward on existing international commitments regarding human rights. It will provide a framework for the federal government to work in partnership with first nations to ensure that Canada's laws, policies, and practices are revised to realize rights, recognize rights, and implement and enforce rights, rather than deny rights. Also, it will provide transparency and accountability for everyone by requiring an annual reporting to Parliament.

I want to spend a few minutes now to talk with you about free, prior, and informed consent. That seems to be a focus of concern, so I want to be very clear on that. I know that it's talked about federally and provincially and by industry, so I want to focus on that right up front.

FPIC—free, prior, and informed consent—was not created in the UN declaration. It was not created in this bill. It already exists in international law. It is an essential element of the right of all peoples, including indigenous peoples, to self-determination, which Canada has recognized for decades.

Consent is the essence of treaty-making between self-determining nations. First nations already have the right to participate in decisions that can affect our rights, property, cultures, and environment, and our capacity to exercise our right to self-determination.

We already have the right to determine our own priorities, and we cannot be denied our own means of subsistence. What's needed is a better process, one that is designed with first nations and involves our people from the start. There is no need to reinvent the wheel here. Free, prior, and informed consent exists around the world. There is already a lot of international jurisprudence to draw on.

A lot of people want to focus on that V-word, “veto”, but the word “veto” doesn't appear in the declaration. It isn't in this bill. The declaration acknowledges the interrelationships between the rights of all people and peoples. To those concerned about free, prior, and informed consent, I would say this: you simply cannot tell a people that they have no right to say no to what happens to them in their own territories.

Imagine a system where you can't say no. That's what we have had for more than a century under the Indian Act, and that's what has led us to this mess we're in today. First nations must be part of the regulatory processes and all the decision-making respecting anything that affects us.

Working with us to figure out what that looks like is not only unavoidable and not only the right thing to do, but it's the smart thing to do. It will lead to more balanced, fewer acrimonious and better decisions, fewer court battles, more timely decisions, and better outcomes for us all. If you want economic certainty and economic stability, embrace the UN Declaration on the Rights of Indigenous Peoples and embrace the support for Bill C-262 going forward.

First nations are already exercising our right to say yes and our right to say no in regard to major energy and natural resource projects. This is all part of the broader conversation that takes place every day between different governments about resource projects—federal governments, provincial governments, territorial governments, first nations governments, and municipal governments. We are already part of that national intergovernmental dialogue, but we have more work to do, and we'll continue to exercise our inherent jurisdiction, sovereignty, and treaty rights as equal partners, not as subservient or junior jurisdictions.

This committee will no doubt offer some comments to enhance Bill C-262 in light of recent developments. In closing, I'll leave behind some recommendations, and I'll touch briefly on them now.

In the preamble, the bill refers to “doctrines” of “superiority”. First, the AFN suggests specifically naming the doctrines of discovery and terra nullius. The text could read as follows:

Whereas all doctrines, including discovery and terra nullius, and all policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust.

We also suggest some additional paragraphs in the preamble. Canada has repeated four principles to guide the approach to working with first nations: recognition of rights, respect, co-operation, and partnership. Including those principles in this law would be a welcome addition to this bill. I also suggest that there is a value in highlighting the importance of treaties, agreements, and other constructive arrangements.

My suggestion for additional text for the preamble is already in the leave-behinds you have. It reads:

Whereas Parliament and the government of Canada are committed to relationships with Indigenous peoples that are based on recognition of rights, respect, cooperation and partnership, which are essential elements in Canada's constitutional framework and international human rights law;

Whereas the standard of Crown conduct in all actions, including government litigation strategies, must be consistent with these elements; and

Whereas treaties...and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between Indigenous peoples and States.

I just note that this last proposal on treaties is already affirmed in the 15th preambular paragraph in the UN declaration.

Finally, I want to hold up and acknowledge Member of Parliament Romeo Saganash for his long-standing commitment both to the declaration and to ensuring federal legislation is brought forward.

I also wish to acknowledge first nations leadership and advocates over the past three decades, who have helped to bring us to this point: Grand Chief Willie Littlechild, Mr. Kenneth Deer, and Grand Chief Ed John. They're just a few of the many who have worked for decades to advance the declaration.

Passing this bill and implementing the declaration will build a stronger country for us all. It will advance reconciliation between Canada and first nations, and it will help to close the socio-economic gaps in the quality of life between first nations and the rest of Canada.

This legislation is something that every member of the House should support. I want to read something for you very quickly. In a very historic address to the 72nd session of the UN General Assembly on September 21, Prime Minister Justin Trudeau acknowledged the failure of Canada to fully respect the rights of indigenous peoples, and acknowledged that the UN declaration is not merely an aspirational document. He said:

We now have before us an opportunity to deliver true, meaningful, and lasting reconciliation between Canada and First Nations, the Métis Nation, and Inuit peoples.

And as we embark upon that process of reconciliation, we are guided by the minimum standards adopted here, in this chamber, ten years ago this month.

I know that Canada has a complicated history with the United Nations Declaration on the Rights of Indigenous Peoples.

We actively campaigned and voted against it, then endorsed it in the most half-hearted way possible, calling it an “aspirational document.”

The Declaration is not an aspirational document. It means much more than that to the Indigenous Peoples and others who worked so hard, for so long, to bring the Declaration to life.

In the words of Canada's Truth and Reconciliation Commission, the Declaration provides “the necessary principles, norms, and standards for reconciliation to flourish in twenty-first-century Canada.”

That's not an aspiration. That's a way forward.

Now I'll take your questions. Thanks.

[The Chair, Liberal, MaryAnn Mihychuk]

This is meeting 100 of the Standing Committee on Indigenous and Northern Affairs of the 42nd Parliament, 1st session. We're talking about UNDRIP and, pursuant to the order of reference of Wednesday, February 7, 2018, 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.

Before we get started, we recognize that we're on the unceded territory of the Algonquin people here in Ottawa. We are in a process in Canada of coming to terms with the truth and moving in reconciliation.

It's our great honour to have the Grand Chief of the Assembly of First Nations in front of us today.

We welcome you. You'll have 10 minutes to present and then we'll move into questioning.

Excuse me. Before I open the floor to you, I see that we have maybe a bit of business to conduct.

MP Anandasangaree.

[Natan Obed]

I want to thank member of Parliament Saganash for his leadership in the development of Bill C-262. Inuit were approached and have been consulted over time by the member of Parliament. We didn't develop this in partnership. There was no formal structure in the way in which the bill was drafted. At the same time, there was no discussion and consultation with this current government when the justice minister decided to endorse Bill C-262 as well.

Over time, we have reserved comment and have been generally supportive of legislation within this country for the implementation of the declaration in Canada, but now is the time when we are asserting ourselves. It started with our position paper in 2017. We continue to try to shepherd through any positive mechanism that helps with the implementation of our rights in this country.

I apologize; what was the second part of your question?

[Natan Obed]

We draw on our rights in different ways, and the United Nations declaration is but one of a number of different ways in which we create our rights-based standing within this country, and it is a welcome conversation for Canada to be a leader within the declaration implementation in a global setting.

You can't go to another country and see a road map of successful implementation of this declaration, especially thinking of and wrangling with constitutional and legislative structures. The worry that we have as Inuit is if Bill C-262 is more symbolic than structural, then it allows for the Government of Canada to restructure its obligations to the Inuit into a different stream.

If an action plan is created and compliance with the action plan is developed by the government, there is no obligation for indigenous people to play a role in that, and the definition of success then changes.

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

The bill was drafted purposely to be the minimum legislative framework in this country, and you talked a lot about the other issues that could improve this bill and other improvements.

Does this bill in any way hinder your own processes that you have established with the crown? Should the improvements that you talk about be incorporated in Bill C-262, or in another framework that the Prime Minister has talked about recently, the reconciliation framework? I'm not sure if it's going to take the form of legislation or policy. I haven't been told, but where should these other improvements that you talk about—and I totally agree with them—be incorporated?

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

Thank you, Madam Chair, and welcome to our guests today. Thank you for that thorough and very principled presentation. It was a pretty good overall view of Canada's international obligations, UNDRIP, and so on and so forth.

I want to ask a very simple question. Clause 2(2) of Bill C-262 says that the bill should not be interpreted as delaying the application of the UN declaration in Canadian law. Clause 3 talks about the UN declaration being an international human rights law instrument that already has application in Canadian law.

Do you agree with that?

[Natan Obed]

The reason we are here today and talking about Bill C-262, the importance of linking international law and its effect, and the obligation of the government of Canada to implement, I believe, goes beyond one government. It is a behaviour that needs to be unlearned, in that there is a call and response—a cause and effect, if you will—for the obligations that Canada has under international law and the way in which it must act within this country.

As you're categorizing it as a broader issue, I would say we are working with this government to ensure that we give them the specific steps they need to take to satisfy the partnership or the respect for indigenous people by allowing for self-determination within the decisions that are made. Whether it's legislation regarding marijuana or whether it's the implementation of the United Nations declaration, there is a road map. Our position paper, especially for Bill C-262, gives very clear direction, and it would be great to follow that road together.

[Natan Obed, President, Inuit Tapiriit Kanatami]

Nakurmiik.

Thank you very much. It's good to see all of you. I've become a bit of a regular, and it's always nice to be able to have conversations about important indigenous issues such as Bill C-262.

I grew up in an indigenous rights or Inuit rights household. My father went away to work on the repatriation of the Constitution and worked on land claims negotiations for a number of years. The idea of the United Nations declaration and the time that it has taken not only for it to go through the UN processes but then also for Canada to adopt it, still falls generally within my lifetime of a little over 40 years.

I want to start with that, the idea that it has taken over 30 years to develop the declaration. It represented the first time that indigenous peoples worked with states to develop an international instrument. After the declaration was passed by the General Assembly, it took almost 10 more years for Canada to offer an unqualified endorsement of the declaration. Even then, we could interpret this endorsement as including the qualification that the declaration should be interpreted through the lens of Canada's Constitution.

The declaration represents an international consensus regarding the minimum standards of treatment of indigenous peoples as human beings. It's an articulation of the existing minimum standards of treatment of indigenous peoples under international human rights law. The purpose of international human rights law is to ensure that all persons and all peoples do not experience atrocities, are treated with dignity, and may live in societies free of discrimination.

One of the reasons for the declaration is that international human rights law did not adequately protect the rights of indigenous peoples due to our close connections to our homelands, a global legacy of colonialism and genocide, and the collective nature of many of our rights. The point is, the declaration is not a gold standard or a ceiling; rather, it's a minimum standard to avoid genocide and to ensure our dignity as human beings.

International human rights instruments such as the declaration are meant to ensure the protection of indigenous peoples from state conduct that might violate their rights. Failing to address economic, social, and cultural rights as rights means that the socio-economic gap between Inuit and non-Inuit will continue to grow.

The declaration is not a policy instrument. The UN declaration is an articulation of international law standards, which are binding on Canada under international law and which apply to indigenous peoples. It's not aspirational in its list of objectives linked to reconciliation. It actually has the force of law.

Compliance with Canada's international obligations means more than changing program criteria or operational practices in one or two federal departments. Canada's Constitution must be interpreted consistent with the declaration, and not vice versa. This includes section 35 of the Constitution, as well as the constitutional division of powers. They're not valid limits in the implementation of the declaration.

This government talked about section 35 and a “full box of rights” concept when the Canadian government adopted the United Nations Declaration on the Rights of Indigenous Peoples. From a very practical, logical standpoint, Inuit would understand, then, that the Constitution would have to be opened up, that we would actually have to place the declaration inside of the Canadian Constitution in order to have the recourse and the restitution that usually accompanies rights.

In the absence of restitution or recourse for violations of our indigenous rights, we still would have to depend upon the courts and upon Supreme Court rulings in order to continue the slow path towards fully understanding how to assert our rights in Canada, rights that the Canadian government does not create and that exist in international law and for indigenous peoples. It would be inconsistent with the nature and character of the declaration or any other human rights to suppress and deny them whenever a country deems compliance to be inconvenient.

The enforcement of human rights involves restraining the conduct of a state. Through this lens, it doesn't make sense to propose requesting the state report to itself on compliance with its own international human rights obligations. Independent oversight is essentially important to the success of Bill C-262. For example, statutory human rights mechanisms across this country are responsible for promoting and enforcing human rights rather than government departments.

Last year we produced two discussion papers on the implementation of the UN declaration. Among other things, these two papers called for a comprehensive legislative approach for implementation and outlined what we consider to be comprehensive.

First, when it comes to understanding an instrument such as the declaration, it's critical to recognize that the rights contained in the declaration are interrelated, interdependent, indivisible, and interconnected. It's not helpful to attempt to approach implementation of the declaration by examining individual articles as specific obligations. In our experience, such an approach leads to very narrow interpretations of the obligations and serves to hinder implementation rather than facilitate it.

Second, many of the standards articulated in the declaration implicate the constitutional division of powers. The federal government has several policy levers that it can use in order to encourage implementation of the declaration sub-nationally, ranging from reporting on implementation in provinces and territories to using the federal spending power to link implementation of the declaration to transfers to provinces and territories. The mere existence of a constitutional division of powers is no excuse to ignore the fundamental human rights of indigenous peoples.

Third, a comprehensive scheme for implementation requires a means of seeking redress for alleged violations to the declaration. If the declaration articulates the fundamental rights of indigenous peoples, then we ask, what is a right without a remedy? ITK has proposed the development of a national indigenous human rights institution operating consistent with the Paris principles to accomplish this. The 1993 Paris principles provide the international benchmarks against which national human rights institutions can be accredited by the the Global Alliance of National Human Rights Institutions.

Finally, reporting on implementation must be done by an independent party. Those who are tasked with implementing the declaration should not also evaluate their own success.

We note that you have already heard from many who recognize that Bill C-262 alone will not accomplish the full implementation of the United Nations declaration. Others have referred to the need for additional reforms, policies, and operational practices. For ITK, full implementation of the declaration requires a comprehensive approach. We would seek to improve Bill C-262 in order to ensure that the legislation fills gaps that cannot easily be accomplished through changes to policies, programs, or operational practices.

I think of language rights in this country and how they have evolved over time. I especially think of the francophone language rights, and I think of francophone language rights being articulated in a complex, overarching, rights-based framework in this country. Even minority francophone populations have the right to go to school and to have school boards within those specific spaces. They have the right to government services in the French language. These are very practical things.

For indigenous peoples, especially in relation to Inuktut, our language, we have rights that are articulated through the United Nations declaration. We now have a government that has pledged to implement those rights, but you cannot compare the implementation of the rights for indigenous languages in this country to the implementation of francophone rights for language in this country.

We want to get to that same space, and the mechanisms and the legislation that we create and the way in which we use the Constitution, federal legislation, and then mechanisms within the provinces and territories will hopefully one day get us to that space where we have the same ability to exercise our rights as other ethnicities do in this country to exercise theirs.

I give that as an example because I think it is a practical one and one that completely overlaps with the way that you can think about Bill C-262 versus the way that you might think about your own place in this country and the rights that you hold.

Nakurmiik.

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

I want you to comment on something. I think you clearly understand the purpose of Bill C-262 as a vehicle or as a framework for the future development of policies and legislation. I'm glad you raised that. Can you imagine or give us an example of how it would work, once this bill is in place, with regard to the future development of any legislation or any policy that you have in mind?

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

Thank you, Madam Chair.

Thank you to both of you for your presence today. It's very well appreciated. Your comments are extremely important for our work on this proposed legislation. I wholeheartedly agree that this Bill C-262 is important for reconciliation, as you said, Brenda, and critical as well.

I believe that, because there is no precedent around the world for this kind of legislation, it is a framework legislation. There is no precedent. In that sense, it will allow Canada to, as you said, come back to the forefront in the protection of and respect for indigenous peoples' fundamental rights. Thank you to both of you for your comments.

I want to start with you, Brenda. You spoke about this bill and its provision on periodic reporting. That provision comes from previous federal legislation that was adopted back in 1976, I believe. For the implementation act of the James Bay and Northern Quebec Agreement, we had a similar provision. For the next 25 years, the minister had to report to Parliament.

Do you see a difference between this periodic reporting that's provided for in Bill C-262 and the kind of periodic reporting that Canada has to do with respect to its international obligations?