Evidence of meeting #99 for Indigenous and Northern Affairs in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was implementation.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Brenda Gunn  Associate Professor, Faculty of Law, University of Manitoba, As an Individual
Celeste McKay  Consultant, Celeste McKay Consulting Inc., As an Individual
Natan Obed  President, Inuit Tapiriit Kanatami
William David  Senior Political Advisor, Inuit Tapiriit Kanatami

March 22nd, 2018 / 3:35 p.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Good afternoon, everyone. Let's get the session started.

First of all, we recognize that we're on the unceded territory of the Algonquin people. We're in a process of truth and reconciliation with our indigenous people, the Métis, the first nations, and the Inuit, as part of the three major nations that are indigenous, just in case anybody forgets one of the groups.

We are still waiting for our second presenter, but the clerk has suggested that we go ahead and ask Professor Gunn to proceed, and hopefully Ms. McKay will arrive in the interim.

We are talking about the UN Declaration on the Rights of Indigenous Peoples.

Why don't we just begin?

Ms. Gunn, you can go ahead. You have 10 minutes, and then if the other presenter comes, she'll have 10 minutes to present, and then we will move into questioning.

It's all yours. Thanks.

3:35 p.m.

Professor Brenda Gunn Associate Professor, Faculty of Law, University of Manitoba, As an Individual

Good afternoon, everyone. Thank you, so much, for having me here today. I am really excited to be here, both to speak about something that I spent a lot of time thinking about, which is the role of the UN declaration in promoting reconciliation in Canada, and also, particularly today of course, the bill before this committee.

I would like to start by acknowledging the traditional territory. I thank the Algonquins for their hospitality and for allowing us to be here. I recognize that this is unceded territory.

I also want to acknowledge a couple of the committee members. I already spoke briefly with the chair. That is the riding I grew up in, so it's very nice to meet her. I would also like to acknowledge member Saganash, who has worked so hard on these issues, both internationally and domestically.

Thank you for your work and for having me here.

I would be remiss not to acknowledge Will Amos. We worked briefly together at Ecojustice, a dog's age ago. I think I was articling and you were just starting at Ottawa, so it's very nice to see you as well.

My name is Brenda Gunn. I am a Métis woman from the Red River. I am an Associate Professor at the University of Manitoba, and I work in both international and constitutional law. I have developed a handbook on implementing the UN declaration, and I've done presentations all over the country and internationally about what the UN declaration means for us in Canada.

I'd like to commend this government for the strong commitment that it has made toward indigenous peoples, including the commitment to implement the UN declaration. I thought I would start today by explaining why I see the UN declaration as being important for reconciliation in Canada and then talk about why I think this bill is so important in its implementation.

When you read the preamble, you see a very compelling story being told, particularly one that's significant in Canada. That is, in 2007, the UN finally recognized indigenous peoples to be peoples and part of the family of the world. We were no longer these “fierce savages whose occupation was war”, in the words of Chief Justice Marshall in the Marshall trilogy, which continue to impact Canadian law today. We are now peoples with all the rights that come with that.

We're also indigenous, and we have a right to be indigenous. We have a recognized right to our collective identities, and there's a recognition that sometimes special measures may be necessary in order to protect our inherent rights. The UN declaration recognizes that colonization occurred and that it has a negative impact on indigenous peoples, in particular, through the dispossession of their lands, territories, and natural resources.

The UN declaration continues to state that the UN is convinced that the path forward requires resetting the relationship between indigenous peoples and Canada through recognizing and protecting indigenous peoples' inherent rights. Contrary to the opinion of some that recognizing special rights for special people would tear Canada apart, the UN declaration is clear that full and robust protection of indigenous peoples' rights will actually enhance harmonious relations between indigenous peoples and Canada.

The UN declaration explains that it is the denial of indigenous peoples' rights that is the cause of the current divisions between indigenous peoples and the rest of Canadians. If we want to reconcile in Canada, that means we have to shift the relationship, forming a new relationship based on the principles of justice, democracy, respect for human rights, non-discrimination, and good faith. Doing so shifts the relationship from a colonial one, where Canada has control over all aspects of indigenous peoples' lives, to one where indigenous peoples freely determine their own futures and are actively involved in all decisions that specifically impact their rights.

When you look through the UN declaration, the substantive rights, one of the key areas is that it recognizes that economic, social, and cultural rights in areas such as language rights, education, health care, housing, and economic development, are critical to the exercise of civil and political rights. There is no hierarchy of rights.

I think the bill before you today is an important step towards implementing the UN declaration in Canada, and it can put this government's words on reconciliation into action because of the way in which it clarifies that the UN declaration applies in Canada, requires a review of laws for consistency, and sets out the need to develop a national action plan and the expectation of periodic reporting.

In my reflection for today's comments, I was thinking about the way in which Canada really led the way on the recognition and affirmation of indigenous peoples' rights when it protected indigenous rights in the Constitution 35 years ago. But unfortunately, Canada no longer leads the world on indigenous rights protection. However, through Bill C-262, Canada can again come back to the forefront of indigenous rights protection. Implementing the UN declaration is also key to fulfilling Canada's international human rights obligations.

One of the challenges I've seen in my work on implementing the UN declaration is the general lack of understanding of how international law applies in Canada.

While the Supreme Court of Canada jurisprudence is clear that declarations such as the UN declaration can and should be used to interpret domestic laws, including our Constitution, there has been hesitance by lawyers and judges to rely on the UN declaration in interpreting domestic law, mostly, I think, due to the lack of understanding of the role of international law domestically.

I think this bill is critical to overcoming the reticence and ignorance of many in the legal field on the relevance of the UN declaration in interpreting Canadian laws, including the Constitution.

This process of interpreting Canadian law in line with Canada's international human rights obligations may occur through court processes, but it can also occur through general legislative and policy reviews and the taking of necessary amendments, as well as through negotiation. It's important to remember that law is not static, not international human rights law and not Canadian constitutional law.

We often say our Constitution is a living tree, with strong roots and an ability to grow and adapt to circumstances. I think the UN declaration is key to helping our Constitution grow and adapt to the changing circumstances in the Canadian context. The presumption of conformity, where domestic laws are interpreted in line with Canada's international human rights obligations, is a well-established principle. More importantly, I think that through this bill, we can also allow Canada to implement its international human rights obligations owed to other nation-states.

Interpreting the Canadian Constitution in light of the UN declaration is also really important because of the fact that Canada, when it goes to international human rights bodies, often points to the Canadian Constitution as something in which it has implemented its international human rights obligations. By using the UN declaration to interpret the Canadian Constitution, we both advance reconciliation in Canada and can help Canada implement its international human rights obligations.

I want to thank the committee for its time this afternoon. I look forward to your questions.

3:40 p.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Thank you.

Welcome, Ms. McKay.

3:40 p.m.

Celeste McKay Consultant, Celeste McKay Consulting Inc., As an Individual

Thank you very much.

3:40 p.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

We were worried about you.

3:40 p.m.

Consultant, Celeste McKay Consulting Inc., As an Individual

Celeste McKay

I'm so sorry for being late. There is some sort of emergency going on.

3:40 p.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Is it a fire?

3:40 p.m.

Consultant, Celeste McKay Consulting Inc., As an Individual

Celeste McKay

I couldn't get out of the traffic jam.

3:40 p.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Well, we're glad you're here.

You have 10 minutes to present your statement. After you conclude, we'll go through rounds of questioning.

We have an agreement that we're going to end at 4:15, because the bells will start ringing at 5:15. We could adjourn at a quarter after or 20 after.

3:40 p.m.

Conservative

Arnold Viersen Conservative Peace River—Westlock, AB

A quarter after is better.

3:40 p.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

It will be at a quarter after. That's the agreement.

The shuttle bus is not running, so we're all hiking it over.

3:40 p.m.

Consultant, Celeste McKay Consulting Inc., As an Individual

Celeste McKay

You guys decide whatever is going on—

3:40 p.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

We have a fire, and we have 250 votes yet.

Ms. McKay, please, go ahead.

3:40 p.m.

Consultant, Celeste McKay Consulting Inc., As an Individual

Celeste McKay

Thank you. Again, my apologies to everyone.

I'd like to start by thanking the Algonquin nation for providing an opportunity for us to speak on their traditional territory here today, and I'd like to thank you for the opportunity to speak with you.

It's nice to see a couple of familiar faces, those of my own MP, Dan Vandal, and of course Romeo—it's nice to see you—and Brenda.

I have a background in social work and law. I'm a Métis person from Manitoba. I had the honour of participating in the draft declaration on the working group for a couple of years right at the end before it was adopted by the UN Human Rights Council in 2006 and then the UN General Assembly in 2007.

I thought I might take this time to focus on the economic, social, and cultural rights contained in the declaration, as well as the specific provisions around violence and discrimination. These are important provisions, often particularly for indigenous women, who fought hard to ensure that the rights related to discrimination and violence were an explicit part of the declaration.

I'd like to start by talking about the interrelationship between the rights and other foundational rights within the declaration, such as the right to self-determination and the promotion of indigenous legal traditions and systems.

When it was adopted on September 13, 2007, it was an historic achievement for the international human rights community. It was the first time that indigenous peoples were welcomed into the world family. To me, the strength of indigenous peoples' abilities to negotiate and resolve conflicts at the table was demonstrated by the fact that we were able to come to a text that, while not perfect, we could live with, knowing that our key interests and rights would be protected for future generations. In the end, together with our allies from human rights organizations and friendly states, I think indigenous peoples were able to negotiate a declaration that addresses a wide range of concerns.

Eleven years later, here we are, looking at how we breathe life into these rights. The declaration covers an extraordinary range of rights and concerns, all of which reflect indigenous peoples' lived experience of colonization and genocide, as well as our values and our aspirations for a world in which our children and our children's children will be able to live in dignity and safety as indigenous peoples on our own traditional territories, while self-governing nations promote sustainable models of development consistent with indigenous customs and laws.

But the declaration is more than the sum of its parts. It affirms the right to self-determination. It affirms our rights to lands, territories, and resources. It affirms the right to maintain and to pass on our languages, our customs, and our traditions in a wide range of areas from sustainable development to education. It affirms the rights of indigenous women and children to live free from violence and discrimination, but it also draws a link between these rights. It says that these rights are all part of a whole that states, courts, corporations, non-government, and our own governments must respect and uphold.

It also draws a link between these rights and all the rights affirmed in all other international human rights instruments, such as the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the UN Convention on the Rights of the Child, etc. The declaration guides and informs application of these standards in the context of the collective rights of our people.

As you are well aware, a basic concept of international law is that all rights are interdependent, indivisible, and inseparable.

When we were looking at articles in the UN declaration and we had states like France saying that human rights are individual rights by their very nature, that's the end of the story, and there's no need for collective rights, we had to say to them, “No, actually they're not, and let's take the example of women facing violence”. Why are they in harm's way? Why do they experience alarmingly high rates of violence? Why do they go missing and murdered so often? It's because of all the systemic pressures on the lives of indigenous peoples, because they're alienated from their traditional territories, because they suffer low socio-economic status and don't have equal access to education and employment. All those things have to be looked at together, and the declaration does a very nice job of doing that.

At the time, as well, when we were negotiating the declaration, that wasn't very well understood. States really didn't see the interaction between collective and individual rights very well, and we had to do a lot of work to explain that.

When we look at today with the systemic nature of issues facing women, we hear about that at the inquiry on missing and murdered indigenous women, for example. We hear about how the impacts of the residential schools and colonization have affected their lives. In our communities there is growing awareness of that as a key issue, a fundamental issue.

As an advocate for indigenous women, when I participated in the draft declaration working group, it was in the early 2000s. That was a time when things really were at such a different level. Now there is so much more awareness, and sometimes that can lead us to get a bit lackadaisical. We, as Canada, have a pretty good human rights system. We have good constitutional law. We have lots of protections. But the fact that we still have all those socio-economic indicators draws out the reason why this act is necessary. We need to demonstrate that, as Canada, we're purposely going to reflect on what the rights are in the declaration and how we are going to live up to those. Part of that is recognizing that right now we don't. Right now, we do have human rights issues facing indigenous people, indigenous women, and indigenous youth.

To me, a challenge for us is to ensure that we give life to the principle of indivisibility at each step of the way. I was going to give some examples of that, but I know I'm almost out of time. If you look at articles 20, 21, and 22, which deal with economic, social, and cultural rights and the right to live free from violence and discrimination, and compare that to article 23, which looks at the right to development, and article 24, which looks at the right to health of indigenous peoples, you can see how they're all interrelated, and when you hear about the example of mining companies exploiting indigenous women in northern B.C., that's a good example of how these rights are interrelated.

I just wanted to end with a personal reflection. I was raised in the 1970s by parents who dedicated their lives to social justice. My dad was an academic. He started the native studies departments at Brandon University, at Trent University, and at the University of Manitoba. I didn't grow up on the land. I didn't grow up with a lot of those traditional practices, but I grew up with a strong sense of identity as a Métis person connected to my Métis culture. I was taught to always share and to be thankful for what I had. I think sharing is a fundamental belief of Métis people, and of course, it's shared with others, but it's a very central one in our community.

Today, four or five decades later from the time my dad was in residential school, my son is learning about reconciliation and the UN declaration in his school.

I'll end there, so we have time for some questions.

Thank you.

3:50 p.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Thank you. It's good to have Manitoba representatives here, both of you. I'll declare my bias right now. Welcome.

We're going to start our questioning. The first round is seven minutes. We're going to start with MP Dan Vandal, a Métis from Winnipeg.

3:50 p.m.

Liberal

Dan Vandal Liberal Saint Boniface—Saint Vital, MB

Thank you. It's actually great to have Manitoba representatives here and great to have a constituent, Celeste.

We don't have a lot of time and I have two rather meaty questions. Legal experts have noted that the declaration doesn't provide any new rights or different rights for indigenous people but rather a clarification related to how those rights can be applied.

Why was it necessary to develop an international instrument that attempts to do this, rather than just use what we have in Canada?

I'll start with Brenda.

3:55 p.m.

Prof. Brenda Gunn

Sure. I was going to defer to Celeste. I'll go first.

3:55 p.m.

Liberal

Dan Vandal Liberal Saint Boniface—Saint Vital, MB

You can.

3:55 p.m.

Consultant, Celeste McKay Consulting Inc., As an Individual

Celeste McKay

Go ahead, Brenda.

3:55 p.m.

Prof. Brenda Gunn

That's always my cheat so that I get more time to gather my thoughts, but I'm happy to try to answer this.

I think it's fair to say that while the existing international human rights standards that Celeste referenced and that are found in the various international human rights instruments that protect economic, social, and cultural rights, civil and political rights, women's rights, and promote the elimination of racial discrimination, there were issues both at international law and in domestic nation-states in understanding how those apply in an indigenous-specific context. I think this was due in part to the racism that existed within many nation-states. So even though legally those rights applied to indigenous peoples, they had yet to be effectively implemented to address and ensure full protection and realization of indigenous peoples' rights.

I think the second aspect of that is that when you look at the phrasing of the rights, you can see how they're grounded in general international human rights conventions, but really talk about an indigenous-specific context.

3:55 p.m.

Liberal

Dan Vandal Liberal Saint Boniface—Saint Vital, MB

If you don't mind, we've only got seven minutes.

3:55 p.m.

Prof. Brenda Gunn

Sure, yes.

3:55 p.m.

Liberal

Dan Vandal Liberal Saint Boniface—Saint Vital, MB

Celeste, would you mind commenting?

3:55 p.m.

Consultant, Celeste McKay Consulting Inc., As an Individual

Celeste McKay

For me, I agree with that and I also think there was no acknowledgement of indigenous peoples as peoples under the international human rights system. If you look at article 1 and article 2, they talk about indigenous peoples being recognized as collectives and as individuals. I think that was an important advancement under the UN declaration.

3:55 p.m.

Liberal

Dan Vandal Liberal Saint Boniface—Saint Vital, MB

As unbelievable as that sounds, there was no recognition.