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

4:20 p.m.

Liberal

Mike Bossio Liberal Hastings—Lennox and Addington, ON

Yes. Thank you.

4:20 p.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

We still don't have our next guest, so let's move on to MP Kevin Waugh.

4:20 p.m.

Conservative

Kevin Waugh Conservative Saskatoon—Grasswood, SK

Thank you, Chair.

Thank you both for coming.

With this bill, there are legislative concerns. You both agree with that, do you, that we do have some legislative concerns?

4:20 p.m.

Consultant, Celeste McKay Consulting Inc., As an Individual

Celeste McKay

No, but please say more.

4:20 p.m.

Conservative

Kevin Waugh Conservative Saskatoon—Grasswood, SK

Okay. We need to iron this out so that we don't spend time down the road in the Supreme Court dealing with these decisions. Would we agree there?

4:20 p.m.

Consultant, Celeste McKay Consulting Inc., As an Individual

Celeste McKay

That's kind of the point of the legislation. That's what Brenda was just saying about certainty. If you're clear on how you act, you spend less time in court.

4:20 p.m.

Conservative

Kevin Waugh Conservative Saskatoon—Grasswood, SK

We're hoping.

4:20 p.m.

Consultant, Celeste McKay Consulting Inc., As an Individual

4:20 p.m.

Conservative

Kevin Waugh Conservative Saskatoon—Grasswood, SK

Ideally, it would work that way, but there is no consensus. How do we proceed then?

4:20 p.m.

Consultant, Celeste McKay Consulting Inc., As an Individual

Celeste McKay

What do you mean by “there's no consensus”?

4:20 p.m.

Conservative

Kevin Waugh Conservative Saskatoon—Grasswood, SK

Consensus means.... We aren't always willing to be collaborative. That's idealistic thinking, but our job, as you can see around this table, is to get this legislation right. I think we all agree with that, to have success, so we need to get this legislation right. By asking these questions, it should not be interpreted as our not supporting human rights.

4:20 p.m.

Consultant, Celeste McKay Consulting Inc., As an Individual

4:20 p.m.

Conservative

Kevin Waugh Conservative Saskatoon—Grasswood, SK

I think we're all on the same...and that's why we're asking about this consent business, because it's a huge issue.

4:25 p.m.

Consultant, Celeste McKay Consulting Inc., As an Individual

Celeste McKay

Maybe this does seem too idealistic or whatever, but when the question comes up, “Does no mean no?”, I think about it in a sexual assault context, and I think, yes, no means no. What do you tell your sons and your daughters? No means no. Here, in this context of aboriginal rights, it means the same thing. Does that mean that indigenous people have the right to everything here, and because this is unceded Algonquin territory we're going to have to give up the parliamentary buildings and move out? No, it doesn't mean that, because at a pragmatic level there are negotiations. There are ways to work out rights and we have those systems in place. We've always had those systems in place.

We understand that we don't have full equality. We understand that women still make 76¢ on the dollar a man makes. Does that mean we believe in full equality? Yes, we do. Does that mean that the whole reality of the country changes overnight because an act is put into place? No. It means we agree that's where we want to be. It means we want to give up our colonial history and we want to be living in a place where rights have life.

4:25 p.m.

Conservative

Kevin Waugh Conservative Saskatoon—Grasswood, SK

Thank you.

4:25 p.m.

Prof. Brenda Gunn

Thank you for your question.

I'm still not quite sure I understand or can agree that there are legislative concerns, but I do understand that there are concerns on this, so maybe I just took too early a flight and my brain is getting mushy.

I think the role of this body and this legislation is whether it takes us to the next step. It's hard to predict the future, and from my analysis, from everything I've done, this legislation is the next critical step that this government needs to take to implement its international human rights obligations and put action to words. I am confident in that.

In 20 years I may be back before a similar committee and we might have learned a lot. I can't say that, but I am quite confident that this is the appropriate next step and that it will take the relationship between indigenous peoples and the Canadian state to the next level and will move it further along in a positive direction.

I understand the concerns about consent. We want to make sure we understand what this declaration is about and what this legislation is setting out to do. What I would hope would happen is that we would be having more conversations. If a group of indigenous people are failing to give their consent, if they're saying no, the government or the regulator or the industry needs to ask why they are saying no. Why isn't it consulting? What is there still an issue? What interest is still not being addressed? What is the concern? The conversations should continue. They may also need to ask themselves what has failed or what has gone wrong such that this process has not successfully led to an agreement.

Then I think there would be enough checks and balances in place that if the government has honestly taken every step, has listened to indigenous peoples, and has addressed their concerns, you still have the power to make decisions. Where the consent isn't sought, I don't know if it will always land in court, but I do think this will improve those processes.

4:25 p.m.

Conservative

Kevin Waugh Conservative Saskatoon—Grasswood, SK

Mr. Obed has arrived. He's here late, so thank you.

4:25 p.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Thank you so much for coming out. I appreciate your taking the time. Meegwetch. Have a good flight back home.

4:25 p.m.

Consultant, Celeste McKay Consulting Inc., As an Individual

Celeste McKay

Thank you. We'll see you in Winnipeg sometime.

4:25 p.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Yes. Good.

4:30 p.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

I want to welcome you here to the committee once again. It's good to see you, Natan, and other guests.

We are a committee that is now looking at the UN declaration , the UNDRIP, and how it's going to impact Canada and our indigenous peoples.

We're glad you have come. I know there is a bit of confusion outside, and we have bells at 5:15, so your time will be somewhat reduced. Therefore, I open it up. You have ten minutes to present and then we'll go into the question periods.

Natan.

4:30 p.m.

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.

4:40 p.m.

Liberal

The Chair Liberal MaryAnn Mihychuk

Thank you. We will be moving, for the first questions, to MP Will Amos.

March 22nd, 2018 / 4:40 p.m.

Liberal

William Amos Liberal Pontiac, QC

Thank you, Madam Chair.

Thank you to our witnesses, Mr. Obed in particular. Mr. David and I are familiar with each other as well. I've never met Mr. Argetsinger, but it is really a pleasure to have you here.

As someone who has spent the better part of a decade using the law in defence of Canadians' rights, particularly on the environmental side, I often look at legislation from the viewpoint of how it's going to be played out in the courts, what some of the eventualities would be. Of course, there are going to be some aspects around governmental behavioural change that are really probably most important, and one would hope, I think, that cultural change would be the first thing that's sought.

I want to ask your respective opinions as to where legislation like this may go in terms of test cases and what could occur. I don't suggest this in any negative sense, because I think test cases and pushing Canadian values and understanding through test cases is really important. It's a really important part of the dialogue. I think you three are well positioned to explore that with us, so I put that to you now.

4:40 p.m.

William David Senior Political Advisor, Inuit Tapiriit Kanatami

As a threshold matter, it's important to note that the declaration is not just some statement that somebody promulgated at the United Nations in a GA resolution. It actually is a clean articulation of several standards of customary international law. Through the Canadian Constitution, standards of customary international law already find application in courts. There has already been a pretty good number of test cases on the declaration, absent the legislative base.

The challenge with the legislation is that it is hard to see where a cause of action comes from within the legislation itself. That actually is one of the reasons why we're calling for the development of remedial mechanisms to be placed within the legislation itself in order to enable those test cases to come forward.