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.