Good evening. My name is Dwight Newman. I am a professor of law and Canada research chair in indigenous rights in constitutional and international law at the University of Saskatchewan.
I carry on a broad-based program of research on indigenous rights, constitutional law and international law. I serve in a variety of related policy roles, including as a Munk senior fellow of the Macdonald-Laurier Institute and as a member of the International Law Association's committee on the implementation of the rights of indigenous peoples.
I appear before the committee as an individual, in response to an invitation I received last week, and I am pleased to assist the committee in whatever ways I can as it considers Bill C-91.
In my introductory remarks, I will do two things. One, I want to highlight the importance of supporting indigenous languages and why the goals of this bill should attract support from all sides; and two, I want to highlight a number of specific sections in the bill to think about or ask further questions about, in order to try to enact the best bill feasible.
First, then, I want to highlight that the scholarly literature on language rights generally references many factors that make initiatives on this subject an urgent matter. Language is not just a means of communication, important though that is, but it is also a vehicle of culture and cultural survival, a support for social solidarity and self-worth of different communities, and a means of conserving concepts and values highlighted within different world views that bring a variety of perspectives on our shared quest for meaning in human life.
Supporting indigenous languages is about supporting human communities, kinship networks, families and individuals. In the Canadian context, it is also a vital response to tragic errors of the past insofar as the residential school system tore apart families and communities and caused severe damage to indigenous cultures and languages.
The 2008 Canadian government apology for residential schools was a vital moment in reconciliation, but apologies must carry through to action and, in this case, action that seeks to restore families, communities and cultures. Supporting indigenous languages is an urgent policy initiative.
Second, I want to turn to this specific bill and highlight a number of questions the committee may wish to consider. This legislation has come to Parliament at a particular stage in time, and there are some resulting dangers in the kind of quick consideration it could end up getting, but we must all do the best we can in giving this bill the close attention it deserves in the limited time available.
I am going to highlight a number of questions I think the committee might wish to consider, very specific questions about sections of the bill, but I hope that will be helpful from a legal perspective.
The definitions section in clause 2 of the bill does not define the term “Indigenous languages”, but that term is used elsewhere in the bill, quite obviously. Also, I would raise the question of whether there should be a provision for a schedule of indigenous languages adopted via regulation, so that there can be clarity on which languages the commissioner is to be focused upon, which could be developed, obviously, in conjunction with the commissioner and in consultation on an ongoing basis with indigenous peoples in Canada.
Several other terms that appear elsewhere in the act are also undefined in clause 2. The terms “Indigenous peoples”, “Indigenous governing body” and “Indigenous organization” are all defined in clause 2. However, other terms used in the bill—“Indigenous groups”, “Indigenous community” and “Indigenous governments”—are used elsewhere in the bill but are not defined in clause 2. I would just invite the committee to think of whether any difficulties could arise from that.
Jumping ahead to a related piece of the bill in clause 25, I do want to highlight that the bill says that the commissioner can provide funding to indigenous communities, indigenous governments or indigenous governing bodies—those specific terms. Given the terminology of the bill, there is an implicit but clear exclusion of indigenous organizations, another term appearing in the bill. Indigenous organizations would include bodies that operate in urban areas. The question here, simply, is whether Parliament is clear that it intends to exclude urban indigenous organizations from the possibility of receiving funding directly from the office. That's just a question to be clear upon.
Returning to earlier in the bill, clause 6 includes a legislative recognition of what is included in section 35 of the Constitution Act, 1982. I am personally on record as agreeing with the substantive view expressed in clause 6 as to what's in section 35, and I personally would also defend the role of legislatures in constitutional interpretation, but my view on the latter point is certainly not shared by all.
I would urge the committee to think carefully on Parliament's view of whether a sort of clause like clause 6 is appropriate as part of a legislative enactment as a clause rather than as part of a preamble, for example. I cannot find a precedent like clause 6 in other legislation. Someone may be able to point to one, but using search terms to try to identify one, I've not found one.
You may wish to consider whether there is a separation of powers issue on the legislature pronouncing on the interpretation of a section of the Constitution in place of the courts doing so. You may also wish to consider if there is a federalism issue in the federal Parliament pronouncing on a constitutional matter that also ultimately affects the provinces and trying to do that through federal legislation.
In clause 7, I would highlight that the English and French versions of the bill do not seem entirely consistent, at least as compared with other indigenous rights-related documents from the Government of Canada and the terms used in those documents to express the same meanings in English and in French. The French term, “en vue de”, as found in the French version of this bill, is elsewhere found alongside an English term, “with the aim of”. The English version here, “in order that”, is usually found alongside a French term, “afin de”. The terms at issue can have different legal meanings, and the English version of clause 7 of this bill uses language that some, in other contexts, end up arguing implies the achievement of the substantive result that follows the term. I know I'm being technical here, but this legislation is going to be a statute.
I do not entirely agree with the view that it has that implication, but it can be argued, and if the bill is passed as is, there may end up being credible litigation that argues that the English version of clause 7 implies a funding obligation, although the French version is much less supportive of that result. I know people have a variety of views on what the clause 7 obligation should be, but it's appropriate that there be consistency achieved between the English and French versions and that Parliament understand clearly what it is or is not committing to with the terminology ultimately adopted in clause 7.
