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

Sponsor

Romeo Saganash  NDP

Introduced as a private member’s bill. (These don’t often become law.)

Status

Second reading (Senate), as of Nov. 29, 2018

Subscribe to a feed (what's a feed?) of speeches and votes in the House related to Bill C-262.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

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.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Votes

May 30, 2018 Passed 3rd reading and adoption of 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
Feb. 7, 2018 Passed 2nd reading of 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

April 26th, 2018 / 4 p.m.
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NDP

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

Thank you, Madam Chair.

Thank you to our presenters, and welcome. Thanks for the support for the UN declaration as well as for Bill C-262. It's very much appreciated. Having travelled throughout the country promoting Bill C-262, I know this is also the desire of all indigenous and non-indigenous communities across the country, so you're perfectly in sync with the rest of the country on this one.

I want to start with you, Chief Leween. I want to understand more in detail how your organization arrived at the position of using the UN declaration as the basis or framework for the work that you do on behalf of your members.

I took note of all the expressions that he used about UNDRIP: that your work is inspired by UNDRIP; that it matters for indigenous peoples; that It's the new future; that UNDRIP is about working together, about collaboration and partnership, and so on and so forth.

Were there difficulties or challenges in arriving at that position about using UNDRIP as a framework for the work you do on behalf of the coalition?

April 26th, 2018 / 3:55 p.m.
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Conservative

Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC

That's still leaving me with—which I think we frankly expressed upfront—some discomfort with proceeding forward until we.... I mean, as legislators, to not understand the implications to passing something....

I think we all recognize UNDRIP as important, so what we're talking about is Bill C-262.

How does the Daniels decision overlay into Bill C-262? Perhaps that is a question for the lawyers here.

April 26th, 2018 / 3:55 p.m.
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Liberal

Mike Bossio Liberal Hastings—Lennox and Addington, ON

Mr. Amos and I are on the environment committee and right now we're studying Bill C-69, the Canadian Environmental Assessment Act. This, of course, is a key discussion as part of that act, what amendments need to occur to bring about that meaningful participation, that collaborative consent type of approach, and how we can put that within the act so it recognizes UNDRIP, and starts to work toward a rights framework.

In going forward with Bill C- 262, I would assume you would agree that we need to ensure that, as we are going through these other acts, we develop a consistent approach across legislation so we can arrive at the place you're discussing right now.

April 26th, 2018 / 3:50 p.m.
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Liberal

Mike Bossio Liberal Hastings—Lennox and Addington, ON

Do you think this is a potential flaw within Bill C-262, that there should be a definition of what FPIC is, or should we...?

There's this argument we've heard here about the legalistic defined approach and then the nation-to-nation relationship approach—you know, the black letter of the law versus political will. Some say that you can't really have one without the other, and others say that it can happen concurrently; it doesn't have to be stated right up front; the black letter of the law does not have to come first, before we enter into UNDRIP and the nation-to-nation relationship that will ensue, in developing a rights framework and toward conciliation.

What would be your view of that?

April 26th, 2018 / 3:40 p.m.
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Chief Rebecca Knockwood Fort Folly First Nation, Mi'gmawe'l Tplu'taqnn Inc.

Thank you, Madam Chair.

My name is Chief Rebecca Knockwood and I am the Chief of Fort Folly First Nation, and the Co-Chair of Mi'gmawe'I Tplu'taqnn, MTI, representing the Mi'kmaq residing in the province of New Brunswick. Beside me, I have Derek Simon, Legal Counsel for MTI.

I would first like to acknowledge that we are on the unceded territory of the Algonquin peoples. I wish to thank the Algonquin Nation for the opportunity to be on their territory.

I would also like to thank the Creator for providing us with the ability to be here today to discuss this most important issue facing our indigenous peoples and facing Canada as a whole.

The Mi'kmaq are the indigenous people of what is currently known as the Atlantic provinces, parts of Quebec, and parts of New England. We are signatories to peace and friendship treaties with the British crown, to which Canada is now a beneficiary. We have never ceded title to our territory.

First, the Mi'kmaq of New Brunswick adamantly support Bill C-262, the United Nations Declaration on the Rights of Indigenous Peoples act. We are most thankful to the Honourable Romeo Saganash for submitting this private member's bill in furthering the realization of indigenous rights in Canada.

In considering this bill, we would bring the committee's attention to the following most important issues.

The first is free, prior, and informed consent, which I will refer to as FPIC. Since Canada withdrew its objector status to the United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP, in 2016, there has been much concern regarding Canada's adoption of UNDRIP. Specifically, articles 19 and 32 identify the necessity of free, prior, and informed consent and say that Canada must consult with its indigenous people to obtain FPIC where they wish to adopt and implement legislation that will affect them or where Canada wishes to approve any project that will affect indigenous lands or resources.

There have been concerns raised by many that, if Canada is to adopt UNDRIP, then these specific provisions would provide indigenous people with a veto over legislation and project development.

FPIC is not a veto. FPIC means that the government must consult with indigenous peoples with the goal of obtaining our consent to use our lands. Where they cannot obtain the consent of the indigenous groups, government must justify its conduct following a framework set down by the court. This is consistent with what the Supreme Court of Canada has said on this issue numerous times, most recently in the Tsilhqot'in decision in 2014. FPIC also means that indigenous people have a right to say no to projects or legislation that affect our rights or our lands.

This approach is consistent with our rights of self-determination, and UNDRIP's identification of FPIC provides a strong framework for reconciling indigenous rights within the larger context of Canadian society.

Under article 46 of UNDRIP, Canada has the ability to limit the rights set out in UNDRIP where such limitation is "necessary...for...meeting the just and most compelling requirements of a democratic society.” This is the justification test that is similar to what government currently operates within with respect to the section 35 constitutional rights of indigenous peoples. As has been identified by the Supreme Court of Canada, section 35 aboriginal rights can be infringed upon, so long as Canada can justify the limitation based upon various things, including a legislative objective, conservation, safety, etc.

Thus, it is clear that there is no veto power for indigenous people contained in UNDRIP, but rather an approach that is consistent with the existing section 35 constitutional framework. That approach is also consistent with our peace and friendship treaties, which require Mi'kmaq consent for use and occupation of our lands.

What UNDRIP does is clarify Canada's existing legal obligations to indigenous peoples, including making clear the circumstances in which consent is required and the nature of that consent.

This is important, because while the courts have made the legal requirements clear, legislation and policy have not necessarily kept pace. Environmental laws and regulatory processes often treat indigenous peoples like stakeholders rather than rights holders, and government does not always approach the consultation process with the goal of obtaining consent, leading to costly disputes and litigation with indigenous peoples. We have seen this in our territory, with protests over fracking, disputes over the Sisson Brook mine, and the derailment of the energy east review process. If government had approached these projects with the goal of obtaining Mi'kmaq consent for these activities, rather than simply going through the motions of consultation, outcomes might have been different.

Bill C-262 creates a legal requirement and a process for Canada to ensure its laws are in compliance with UNDRIP. However, since policies often influence how government conducts its day-to-day business, we would recommend that the words “and policies” be added after “laws” in clause 4, and that policies be included in the national action plan required by clause 5.

Another important aspect of UNDRIP is its recognition of our rights to our lands, territories, and resources, and our right to readdress those rights. They have been lost. While these rights have already been recognized by the courts, articles 26 and 28 affirm these rights, and article 27 requires Canada to develop “a fair, independent, impartial, open, and transparent process”, having regard to our laws, customs and systems, to recognize and adjudicate our rights pertaining to our lands, territories, and resources.

Although the federal government has long recognized that its comprehensive claims and self-government policies do not adequately address the needs, aspirations, and realities of the Mi'kmaq as signatories to the peace and friendship treaties, we have struggled for some time to come up with an effective alternative to address the implementation of our aboriginal and treaty rights and the recognition of our aboriginal title.

Recently, the Mi'kmaq of New Brunswick, like our brothers and sisters in Nova Scotia, Quebec, and Prince Edward Island, have been working with the Government of Canada and the province to develop an effective process for implementing our aboriginal and treaty rights. This is called the rights implementation approach to negotiation. Much work still needs to be done, particularly on finding a way to achieve due recognition of our title. We would prefer not to have to resort to lengthy court battles in order for our title to be recognized, but we still lack effective mechanisms for addressing this outside of the courts.

The adoption of the UNDRIP bill is helpful as it creates a legal framework to ensure that our right to an effective process is grounded in law, and not just in policies, which can change from government to government. Beyond adopting this bill, we have suggested a number of specific actions the government can and should take to more effectively address our rights in our submission on the government's proposed rights recognition and implementation framework as well. We will provide the committee with a copy of that submission.

Wela'lioq for listening to me today.

I welcome any questions you may have.

April 26th, 2018 / 3:30 p.m.
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Chief Corrina Leween Vice-Chair, First Nations Major Projects Coalition

First of all, thank you, Madam Chair.

I am Corrina Leween. I am the Chief of the Cheslatta Carrier Nation. Our territory is situated in a semi-remote location in the north-central interior of British Columbia. Since 2015, I have served as Vice-Chair of the First Nations Major Projects Coalition, which is the point of view I will be speaking from today. Before I begin, I also want to acknowledge our presence today on the traditional territory of the Algonquin people.

With me today are two members of the coalition's technical support team; Niilo Edwards, who is our Executive Director; and Aaron Bruce, who is our Legal Adviser and also a member of the Squamish Nation in British Columbia. Mr. Edwards and Mr. Bruce are able to respond to questions the committee may have about the coalition's technical work.

I want to begin by thanking the committee for this opportunity to provide comments on the consideration of Bill C-262. In particular, I want to thank Mr. Saganash for his efforts to bring this proposed legislation forward. I also want to recognize Minister Jody Wilson-Raybould and the Government of Canada for indicating their support for the consideration of this bill.

Today I see a historic opportunity for indigenous groups and communities to collaborate with other orders of government to create a better and shared future. Bill C-262 represents an important break with the past and a bold step into the future. UNDRIP is a tool of empowerment and a means of taking control of our destiny as the original owners of our traditional lands. This was not always the case. Our past is what has brought us here today, but it is our actions today and in the weeks, months, and years ahead that will give us a chance to set a new path, a path of our choosing.

I will start by outlining the work and the structure of the major projects coalition, which our nations established to convert our legal and constitutional rights into financial well-being and independence. Established in 2015, the coalition is a first-nations-led response to addressing community-level business capacity gaps. What started as a group of 11 first nations looking for equity ownership in major projects has grown into a first-nations-led organization of 40 elected and hereditary first nations. We have developed a comprehensive suite of economic and environmental technical models that can be used to benefit our communities.

Our mandate is non-political and business-focused. The coalition is a project-agnostic body that provides access to technical services and capacity support to our members upon request. The coalition's structure makes it possible to provide technical services to a large number of first nations dispersed over a wide geographic area. Services designed to support informed decision-making are provided to coalition members free of charge due to the funding received from the governments of Canada and British Columbia.

Our structure as a nation-based and community-driven organization has attracted the interest of first nations in other parts of Canada. We are building towards becoming a national initiative. At our March annual general meeting, members of the coalition moved to create an extra-provincial caucus, enabling first nations in other parts of Canada to join the coalition. The coalition and its services are, by design, inspired by the United Nations Declaration on the Rights of Indigenous Peoples. We have submitted a technical brief to your committee that compares key pieces of the coalition's work with articles of that declaration.

While much has been said at this committee about the political and legal considerations concerning Bill C-262, we are here to speak to issues that highlight its practical application at the community level. I believe discussions of this nature are needed to shape the implementation of this legislation.

The coalition's work gives examples of how the government can structure its interactions with indigenous governments to live up to the principles of the declaration. These interactions should, and rightfully so, challenge the status quo and bring about dramatic and substantial change. The presence of the coalition shows that UNDRIP matters in the lives of indigenous people.

The prospects for significant change also generate fear of the unknown. Consider the principles of free, prior, and informed consent. The coalition explores the principles in the context of major project development. It provides a foundation for shared decision-making processes between indigenous governments, other orders of government, and proponents backing development within traditional territories.

We often hear the Prime Minister and members of his cabinet say that the environment and the economy can be balanced. We can get to that balance by working together, but it is the approach to working together that matters the most.

Our tools and models ensure that the traditional and the cultural interests of our members can also be balanced with our commercial requirements. We can use financial prosperity to support our self-determination and self-reliance. This work is organized by the coalition through three cornerstone process documents: one, a model ownership tool kit; two, an environmental stewardship framework and project assessment standards document; three, project identification and capacity support criteria document containing project-scoring criteria, which is in essence a first nations definition of what a major project is to our members.

Government and project proponents need to understand that this work is currently under way. We are undertaking some of the work necessary to administer our own affairs and advance our own futures.

The Government of Canada is making comparable efforts through such measures as the rights and reconciliation framework and the sunsetting of the Department of Indigenous Services. That requires the indigenous groups and communities to develop the sustained capacity to fully develop their own decision-making processes. Our nations have and they are ready to act.

We also have to inform government about our needs and provide them with a road map to developing these collective skills. Likewise, governments can assist the process by engaging groups like the coalition in the technical discussions. These often take place at the political level.

We need to move these partnerships at the operational level within departments and central agencies. This openness to collaborate must become commonplace across government departments and central agencies, particularly as Bill C-262 is implemented.

In closing, we need to exercise tolerance and understanding. There will be missteps along the way by our nations and by other governments, but if we believe in UNDRIP, we will accept occasional errors, provided the spirit of collaboration remains strong. UNDRIP changes everything. It provides, finally, our communities with the opportunity to move forward at lightspeed. We call on governments to support our efforts to capitalize on the new reality. We ask them to collaborate with us to build on UNDRIP's potential: a new future, one based on indigenous rights, autonomy, and prosperity. It's within our grasp.

We want to see UNDRIP synchronized with Canadian laws and legislation. Our communities want control of their future. Bill C-262 is a major step in the right direction.

I thank you for listening to me, and I look forward to your questions. Mahsi cho. Awitza.

April 26th, 2018 / 3:30 p.m.
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Liberal

The Chair Liberal MaryAnn Mihychuk

We are here at the Standing Committee on Indigenous and Northern Affairs at the Parliament of Canada, and we are talking about 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.

As we sit here today and we're talking about some of the truths and we're in a process of reconciliation, it's important to recognize that we're on the unceded territory of the Algonquin people and that this is a live process that we're still working our way through.

We have two groups for the first panel. You'll get up to 10 minutes. However you want to split it up is up to you. I'll give you signals before your time is up. Then we'll go into rounds of questioning.

We're going to start with the First Nations Major Projects Coalition, Chief Corrina Leween.

Welcome. Please go ahead.

Opposition Motion--Papal Apology on Residential SchoolsBusiness of SupplyGovernment Orders

April 26th, 2018 / 1:25 p.m.
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Liberal

Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

Mr. Speaker, I want to begin by acknowledging that we are gathered here on the unceded lands of the Algonquin people.

I am very pleased to speak today on such an important topic. There are three issues that are outlined in the opposition motion brought to us by the NDP. I will focus on the one that relates to the apology from the Pope and the Catholic Church. Before I address that, I want to outline why this is important to me.

As a practising Hindu, I believe it is important that I acknowledge that I was raised in many ways in the Catholic school system. My first four years of schooling, both in Sri Lanka and Ireland, were in the Catholic school system. That is very important to me, because that faith taught me a great deal about life, about values, and about important rights and wrongs. I have nothing but good things to say about my education.

Unfortunately, that has not been the case in the history of Canada. The Charter of Rights and Freedoms gives us the right to believe what we believe in and the right not to believe. As such, I think it is important to say that the conversation today is really to focus on the issue of residential schools and to look at how we, as a country, can move forward with the issue of reconciliation.

Reconciliation is very difficult to talk about. It has been attempted by many countries. South Africa stands as one example, and I know other countries in Africa have undertaken it. Canada has also undertaken this process, and I think the Truth and Reconciliation Commission serves as a foundation for that discussion, that journey, as my friend said earlier.

That journey begins on a number of fronts. There are calls to action that require governments and different institutions to do their part in addressing and advancing the issue of reconciliation. I think we have made a number of different achievements on that front, one of them obviously being the current discussion and debate we had with respect to UNDRIP, the UN Declaration on the Rights of Indigenous Peoples, and Bill C-262, the private member's bill that was brought forward by the member for Abitibi—Baie-James—Nunavik—Eeyou. That is also very important to the concept of reconciliation.

With respect to institutions, there are a number that play a very important role, most notably the Catholic Church. Before I talk about what is being asked of the church, when I was preparing for this debate, I really took to heart that I have two young girls who are seven and nine. We live in a home where we speak Tamil, or broken Tamil to some extent because my kids and my wife are not fluent. However, we try to impart a sense of language, culture, and faith to our children. It is fundamental to me, my family, and my children. It is what grounds me on a day-to-day basis.

I really thought about what happened with the residential schools. Oftentimes, at the age my children are, or maybe even younger than that, the kids were taken away, placed in a residential school setting, and were prevented from speaking their language. As we know, language is so important to us. Our mother tongue is essential to us. Tamil people in my community lost over 100,000 lives defending their language, the right to speak their language, and the right to advocate and go to school in their language. It is very important. When those children went into the residential schools, they lost their mother tongue.

Then we have culture. Again, this valuable, important thing defines each and everyone of us. All of us in the chamber come from different backgrounds, many from very different backgrounds. That really takes away from our practices, our understanding of the world, the baseline concepts we take for granted because we are grounded in that culture. When kids are taken away, when that culture is taken away from them, it really does take away the heart of that child.

All religions, all indigenous communities have very rich traditions of spirituality that are so important. We try to do it oftentimes in a symbolic way. We try to do it in Parliament. We try to do it when we have events in our ridings or national events. We try to incorporate some of the spiritual practices of religions, but it is in many ways symbolism. We have lost the core of that spirituality, and young people who went into residential schools lost that.

I do not want to talk about the abuse, but imagine bringing that child back into the community eight to 12 years later. See if that child can have a relationship with their parents, their grandparents or their community or they with that child. It is disturbing and fundamentally wrong to do that, yet we did it with government sanction, with government-run programs to support residential schools. This did not happen because of a choice. It happened because of decisions that were made in the House and religious institutions were tasked to carry out those duties.

We now see 150,000 people who have gone through this and many generations of indigenous people have been affected by it, have been broken by it. We are here today to correct that.

A number of institutions have been involved and implicated in this, most notably the churches. I want to point out that a number of different churches have addressed this issue over the past several years. For example, in 1993, the Anglican Church made that apology. The Presbyterian Church made that apology in 1994. The United Church made two apologies, one in 1986 and one in 1998. The Missionary Oblates apologized in 2001. In 2008, the Government of Canada formally apologized.

In the indigenous affairs committee one of the studies that made me understand the effects of residential schools was the study on suicide, which was tabled in here about a year ago. That study essentially looked at some of the contributing factors. Well over 100 people talked about the effects of residential schools on their lives and on their relationship with families and communities.

Today we are here because all of these have contributed to the socio-economic factors about which we often talk, about the continuance of colonialism in our society. Standing here I always look at my friend across, the member for Abitibi—Baie-James—Nunavik—Eeyou, someone who I have the utmost respect for and look at as a teacher more than as a colleague. We have travelled together on a couple of occasions. At times, he would share his experiences, the effects on him, his family, and community. It always comes back to that.

Today, I would respectfully ask the church and the Pope to do the right thing. I hope the Pope visits Canada soon. At that time, I hope he gets to meet a number of the people who have been affected by this directly, including my friend from Abitibi—Baie-James—Nunavik—Eeyou. To me, the Catholic faith is about doing the right thing. I have no doubt this will happen. I call upon them, as do my colleagues across the way, to do the right thing.

April 25th, 2018 / 6 p.m.
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Liberal

Mike Bossio Liberal Hastings—Lennox and Addington, ON

Thank you, Chair.

Meegwetch for allowing us to have these meetings on the unceded territory of the Algonquin people. It is so important for us to have you present here today to share your words and your thoughts and your concerns with us on this important bill.

Will and I sit on the indigenous affairs committee and are studying Bill C-262 on UNDRIP. I understand from what you're saying that the rights and recognition framework, the tables, and FPIC should be recognized and embedded within this bill. Would you agree with that?

April 24th, 2018 / 5:15 p.m.
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NDP

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

Thank you, Madam Chair.

Thank you to our presenters.

Pat, please relay my greetings to Mr. Neumann and tell him I really appreciate the support for Bill C-262 from your union.

Thanks, Jennifer and Paul, for your presence here. I think it's important. Your combined experience on the declaration is about 100 years.

Paul, you said in your comments that the consent we find under international human rights law is the same consent we find in Canadian constitutional law. Can you point to any decisions of the Supreme Court where these elements were addressed: free, prior, and informed consent?

April 24th, 2018 / 5:05 p.m.
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Conservative

Cathy McLeod Conservative Kamloops—Thompson—Cariboo, BC

Thank you, Madam Chair.

Thank you to the witnesses.

I want to say up front that the UN declaration has the support of all parties. What we're talking about is Bill C-262 not necessarily having the support of all parties.

When it's characterized that any objection to it is fear and rooted in colonialism, I take exception. As legislators, I think it's important that we understand the implications of any piece of legislation that's before us. I just want to make that note.

We heard from Mr. Joffe, who is very well recognized and honoured. We've heard from a number of lawyers who have a very different perspective in terms of what the implications of Bill C-262 might be in Canada. I think that is a legitimate and important debate, and we shouldn't shut down that debate.

I have one question. We can have a lot of lawyers speculating on what it will mean to Canada, but is this important enough that it should be a reference question to the Supreme Court, in terms of really understanding it and changing Canadian laws to be consistent with the declaration?

I'll put that out there. Is that something that should be done?

April 24th, 2018 / 5:05 p.m.
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Program Coordinator, Canadian Friends Service Committee

Jennifer Preston

To build on that as well, even when you look at a situation like Kinder Morgan, which has been so much in the press—and this question around that has been built up—signing an impact agreement doesn't mean you're necessarily for the project. You may have felt that was the only option. I think it's important to know that.

I would also say that I think one of the things about the NEB approval of Kinder Morgan is that it wasn't necessarily a good process. That has created part of the problem that we have. Having better processes before we reach this point, which is what Bill C-262 is all about, means that we're not hitting those conflicts.

Why did we hit a conflict wall? We hit a conflict wall because Tsleil-Waututh First Nation was not accommodated in that process. We hit a huge wall. If we have better processes that don't lead us to those enormous conflicts, we're going to be way better off.

April 24th, 2018 / 5 p.m.
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Lawyer, As an Individual

Paul Joffe

I realize I have a little bit of time.

Yes, it's true. The Supreme Court has said, as I said, in 1987 and since then they've affirmed that international declarations are relevant and persuasive sources for interpreting human rights in Canada. So there's no question. But it goes farther than that.

First of all, indigenous governments, the federal or provincial governments, and all the human rights commissions in Canada under CASHRA, which is the umbrella group, support the UN declaration. People are free to use the declaration.

The benefit of having legislation is, first of all, that this legislation creates collaborative processes. That's always been a problem. When it isn't collaborative and legislators do things alone, unfortunately throughout Canada history has shown that there's been colonialism, there hasn't been an understanding, the problems have been entrenched in legislation, and we haven't gotten anywhere.

In terms of the recognition and rights framework—to be very quick—we'll have to see what that includes, but of course it fits with Romeo's bill. It's another step.

The way you implement the UN declaration in Canada, though, is not just to adopt Bill C-262. It's to integrate it in your various pieces of legislation. That way no one can say there's uncertainty. Let's say you're dealing with indigenous languages. If you fit it into, let's say, the preamble, the reference, or whatever, and show how it's going to be used and how it's going to reinforce the objectives of all legislators, that would help. It should be done with the proposed impact assessment act, Bill C-69. It should be done with Bill C-57. That way you not only create consistency but you also avoid uncertainty and meet the legislators...whatever.

I don't want to take their time.

Thank you.

April 24th, 2018 / 5 p.m.
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Liberal

Gary Anandasangaree Liberal Scarborough—Rouge Park, ON

Thank you very much to the panel for being here.

Mr. Joffe, your name has come up over and over again with respect to UNDRIP, so we're quite honoured to have all of you here sharing your knowledge and wisdom.

I want to share my time with MP Vandal, but I do want to talk to you about one aspect of your presentation, and that is whether we need to have Bill C-262 in order for UNDRIP to be applicable in Canadian law. I know you suggested that international conventions and declarations essentially are part of domestic law. In this particular case, I would like to get your position as to whether we even need this.

The second part of this is your views with respect to the recognition of rights framework that was introduced several weeks ago by our government.

April 24th, 2018 / 4:50 p.m.
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Paul Joffe Lawyer, As an Individual

Thank you very much.

Good afternoon, honourable committee members. I'm pleased to be on the unceded traditional territory of the Algonquin people and to have this opportunity to appear before this distinguished committee.

I commend the committee for examining Bill C-262, the short title of which is the United Nations Declaration on the Rights of Indigenous Peoples act.

A strong bill, when adopted, will make a significant contribution to national reconciliation and the Truth and Reconciliation Commission's calls to action. In particular, I wish to acknowledge the determination of MP Romeo Saganash in bringing Bill C-262 to this critical juncture. His accomplishments to date are all the more significant since he is the only indigenous MP who is a residential school survivor.

Let's begin with the living tree doctrine. Aboriginal rights affirmed in section 35 of the Constitution Act, 1982 are subject to progressive interpretation. This is consistent with the living tree doctrine that applies to Canada's Constitution. As decided by Canada's highest court in 1984 in Hunter et al. v. Southam:

Once enacted, [the Constitution's] provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.

The UN declaration constitutes a new social, political, and historical reality, a consensus human rights instrument that elaborates on the rights of indigenous peoples globally. As the Supreme Court indicated in Reference re Same-Sex Marriage, “A large and liberal, or progressive, interpretation ensures the continued relevance and, indeed, legitimacy of Canada’s constituting document.”

My next point emphasizes that indigenous peoples' rights are human rights. Mr. Saganash has repeatedly emphasized in Parliament and in this committee that indigenous peoples' rights are human rights. This crucial characterization is beyond question. Successive federal governments, both Conservative and Liberal, have confirmed to the United Nations that the aboriginal and treaty rights of indigenous peoples in Canada are human rights in Canada's domestic legal system. For over 35 years, indigenous peoples' inherent rights have been addressed within the UN human rights system. Therefore, all governments, business entities, academics, and others in Canada should recognize the human rights quality of indigenous peoples' rights.

In Tsilhqot’in Nation v. British Columbia from 2014, the Supreme Court of Canada underlined that the Canadian “Charter forms Part I of the Constitution Act, 1982, and the guarantee of Aboriginal rights forms Part II.” The court went on to say, “Parts I and II are sister provisions, both operating to limit governmental powers, whether federal or provincial.”

In the 1987 Reference Re Public Service Employee Relations Act case, which was in Alberta, chief justice Brian Dickson emphasized that declarations and other sources of international human rights law “must...be relevant and persuasive sources for interpretation of the [Canadian] Charter's provisions.” In other words, if international declarations are being applied to interpret human rights in part I of the Constitution Act, 1982, then the same must be true for indigenous people's human rights in part II.

Thus it is essential that subclause 2(2) of Bill C-262 affirm:

Nothing in this Act is to be construed as delaying the application of the United Nations Declaration on the Rights of Indigenous Peoples in Canadian law.

As confirmed in Canadian and international law, indigenous peoples' rights are inherent or pre-existing. In the absence of subclause 2(2), some people might claim that the rights in the UN declaration would not apply until the collaborative processes in clauses 4 and 5 of the bill determined the nature and scope of such rights.

Now let's turn to the important issue of consent versus veto. FPIC, or free, prior, and informed consent, is not created by the UN declaration. The declaration affirms and elaborates upon existing rights; it does not create any new rights. The term “veto” is not used in the UN declaration. Veto implies an absolute right, that is, no taking into account the facts and law in each case. There is no balancing of rights. This is neither the intent nor interpretation of the UN declaration, which includes some of the most comprehensive balancing provisions in any human rights instrument, especially article 46(3) which indigenous representatives negotiated with Canada.

Consent is an essential element of the right of all peoples to self-determination. This right is included in identical article 1 of the two international human rights covenants that Canada ratified in May 1976. FPIC and international law have the same meaning as consent in Canadian law. In both cases, if there is duress, there is no valid consent. The same is true if consent is sought only after a project is initiated or if the information provided is inadequate or misrepresented.

At the international level, the application of FPIC to indigenous peoples is supported by the UN General Assembly, the UN Secretary-General, the Office of the High Commissioner for Human Rights, UN treaty bodies, specialized agencies, UN special rapporteurs, the UN Permanent Forum on Indigenous Issues, and the UN Expert Mechanism on the Rights of Indigenous Peoples. None of these entities, bodies, or mechanisms describe FPIC as a veto.

The same is true for the Inter-American Court of Human Rights and the African Commission on Human and Peoples' Rights. Consent must include the option of withholding consent. This conclusion clearly makes sense. It would be absurd to conclude that indigenous peoples have the right to say yes, but not the right to say no, even in the most damaging circumstances.

With a view to ensuring co-operative and harmonious relations, I respectfully propose three amendments to Bill C-262 for your consideration.

With regard to the first amendment, the current title of Bill C-262 does not fully reflect all of the matters addressed. Thus, I propose the title, “An Act to implement the United Nations Declaration on the Rights of Indigenous Peoples and promote reconciliation”.

My next two amendments would fit nicely at the very beginning of the preamble.

The following new paragraph reflects the wording of both the UN Expert Mechanism on the Rights of Indigenous Peoples and the UN Permanent Forum on Indigenous Issues, and would read as follows: “Whereas implementation of the United Nations Declaration on the Rights of Indigenous Peoples constitutes a principled framework for justice, reconciliation, healing, and peace;”.

Finally, my third amendment just reflects the 18th preambular paragraph of the UN Declaration, and reads as follows: “Whereas affirmation of the rights of Indigenous Peoples in that Declaration will enhance harmonious and cooperative relations between Canada and Indigenous peoples;”.

Thank you.