Good afternoon, everyone.
I'm thankful for the opportunity to be here today. I want to speak in the language of this territory, just to introduce myself.
[Witness speaks in Anishinaabemowin]
I just introduced myself as being from the Cape Croker Indian Reserve on the shores of Georgian Bay, in Ontario. I'm of the Otter Clan, and my name is Kegedonce.
I'm the Canada Research Chair of Indigenous Law at the University of Victoria Law School, and I've been teaching for 25 years. We've recently received approval from the British Columbia government to go ahead and fund a joint degree in indigenous law and the common law, and so we will be teaching these legal systems together just as at McGill they teach common law and civil law together.
In talking about this bill today, I want to stress two points. It's principles-driven and process-oriented, and I think the principles are worth rehearsing and the process is worth emphasizing.
The principles are that this is about democracy and participation and about people working together in this framework of human rights. The principles are very much constitutionally sound and driven and consistent with the constitution, including the role of indigenous peoples in participating in their own communities and with other governments in defining opportunities and challenges that they're facing.
These principles are also well chronicled in the Truth and Reconciliation Commission, to which this bill makes reference in the preamble. These principles are directed to addressing the injustices that are historic and current across our country. As you know, 64% of the children in care in British Columbia are indigenous. Twenty-eight per cent of the prison population of Canada is indigenous, as examples of the contemporary injustices that are part of our system.
I do want to make the point, though, that part of the principles of this bill are limitations on governments, indigenous and Canadian. For instance, there has been a recent controversy in Quebec and the Kahnawà:ke reserve about the marry-out get-out laws.
Those laws, under this bill, if they were to be articulated, would have to account for article 9 of UNDRIP, which says that indigenous peoples have the right to belong, in accordance with the traditions and customs of their people, but that no discrimination of any kind may arise from the operation of this act.
The point I'm making here is that UNDRIP will not apply just to Canadian governments. UNDRIP will also apply to indigenous peoples themselves. So whenever indigenous peoples operate within this document, they themselves will be receiving and obligated to follow the same kind of human rights concerns that are part of the United Nations, part of Canadian law, and indeed, part of their own legal traditions, because it is the case that there are many different points of view within indigenous law, and there are ways of working through those conflicts that are respectful of human rights.
I want to make the point that this is repeated over and over again in the document. So yes, we will be expecting, if this bill becomes law, that indigenous peoples will be protected from state incursions in relation to life, liberty, security, labour, housing, health, education, media, religion, spiritual practices, land, community membership, etc. But I also want to emphasize the point that indigenous peoples will also have to pick up this document and use the same human rights concerns within their legal traditions to respect life, liberty, security, labour, housing, health, education, media, religion, spirituality, land, etc. This is a very important contribution to the rule of law in this country. Anishinabe law, Blackfoot law, Salish law, Mi'kmaq law, and Honeshonee law all have human rights traditions, and these traditions will be enabled to flourish as a result of the implementation of this bill.
Now let me make the other point about article 46 of the declaration, which says that nothing in this bill can be construed to dismember the territorial integrity or the political sovereignty of the nation state of Canada.
There are definite limits on indigenous peoples as this right is being exercised. Likewise, article 46.2 says:
The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law...in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect [of] the rights and freedoms of others and for meeting the just and...compelling requirements of a democratic society.
The point to make here is that no rights are absolute in our country and this document does not change that point. It's also to make the point, though, that the crown's opportunities are also constrained. When subsection 35(1) was passed, it represented a constraint on the sovereignty of the crown. Just as the charter is a constraint on the sovereignty of the crown when it comes to individuals, so are aboriginal and treaty rights a constraint on the sovereignty of the crown when it comes to indigenous peoples.
The point I'm making here is that it's not just for this committee alone, or this chamber alone, to be able to determine what the rights and obligations are under our charter or our aboriginal rights or this declaration. The framework is that we are all limited and we—here's the principle—through consultation and co-operation will create a national action plan that is a process-oriented, continuing conversation about how we harmonize these opportunities together. We would then report to Parliament frequently to determine how our progress is happening along that front.
The framework for subsection 35(1) is that aboriginal rights are sui generis, meaning they're unique or of their own kind. The Supreme Court of Canada says that a morally and politically defensible conception of aboriginal rights will incorporate both common law perspectives and indigenous perspectives. This bill is very consistent with that constitutional heritage and tradition. It picks up on the limitations that indigenous peoples will have to act within in accordance with the Constitution, in accordance with this bill, which are human rights limitations, as well as giving way from time to time to the right of other Canadians when it's demonstrably justified in a free and democratic society.
Likewise, the crown is also limited. The whole justification test in subsection 35(1) says to the crown that you cannot do just what you want. This goes back to the Glorious Revolution and the Magna Carta, the expectation that our governments are limited and that there are checks and balances on our governments. This document is about those kinds of checks and balances. I think that the process-oriented provisions found in this bill, which are driven by principle, will enable us to work through these democratic debates in a human rights context, in a fashion that allows us to carefully, and with reasonableness through time, ensure that we get the proper balance and the harmonization.
When I think about harmonization, I think about playing a piano. If you put your fingers down on a piano keyboard, you're often pressing different keys. That's what we'll be doing when we try to determine the rights of Parliament, other Canadians, and aboriginal peoples. But it's possible, with harmonization, when you press those keys to get a sound that is resonant. I believe this bill is a part of that resonance that flows from our history, our constitutional traditions, and is directed by what we were called on to do by the Truth and Reconciliation Commission.
[Witness speaks in Anishinaabemowin]