Procedure and House Affairs Committee on April 7th, 2022

[The Chair, Liberal, Bardish Chagger]

Good morning everyone.

I call the meeting to order.

Welcome to meeting number 15 of the House of Commons Standing Committee on Procedure and House Affairs.

In the first hour of the meeting, the committee will continue its study on the inclusion of indigenous languages on federal election ballots.

We have two panels of witnesses again today, joining us virtually. The first panel will include Jean-François Daoust, assistant professor at the University of Edinburgh; Dwight Newman, professor of law and Canada research chair in indigenous rights in constitutional and international law at the University of Saskatchewan; and Allison Harell, professor in the political science department of the Université du Québec à Montréal.

On behalf of PROC committee members, I would like to welcome you all here today. We will get right into it, with up to five minutes for your opening comments.

We'll start with Monsieur Daoust.

[Dr. Jean-François Daoust, Assistant Professor, University of Edinburgh, As an Individual]

Thank you, Madam Chair.

Good morning, everyone.

When I learned the subject of today's discussion, I saw three separate components.

First, we have to look at the principles and values of our society that would lead us to include, or not, indigenous languages on federal election ballots. This is a fundamental discussion described as "normative" that relies on the values of Canadians.

The second component is the technical aspect. How might it work and be applied in practice?

The third and final aspect is the involvement and potential consequences from what we know of empirical studies of election participation by indigenous people.

I am going to focus on the first and third components: the normative aspect and the empirical documentation aspect, leaving aside the technical considerations.

With respect to the normative aspect, we have to consider the values of our society. What are they? How can they be reflected in public policy and improve the electoral process? Obviously, Canadian society claims to be inclusive.

In political terms, and in connection with the electoral process, that means promoting inclusion of all groups in society, so that as many people as possible are able to participate in the political process, especially in elections, which are a key moment in our democratic cycle. In order for as many people as possible to participate in elections, we have to pay particular attention to the groups that systematically participate less in democratic life in our society.

In many regards, Canadian society in 2022 is not inclusive of indigenous communities. Indigenous people face systematic barriers and this means that they participate less in democratic life as compared to non-indigenous people.

It therefore seems entirely consistent and desirable to enable indigenous people to vote with instructions in their language that would be included on their ballot. For that reason, I think we should approach this question with a somewhat sympathetic view of this kind of initiative and its aim of inclusion.

I am now going to talk about the empirical aspect. I think the big question we have to ask ourselves is this: can we expect an increase in electoral participation by indigenous people as a result of this measure?

In my opinion, that is probably not the case; if it were, their participation would be very limited.

We should expect an increase in electoral participation if and only if this measure meant that it became easier for indigenous voters to go and vote and if this consideration, the ease of voting, has a major influence on their decision of whether or not to vote.

Although samples of data concerning indigenous people are very limited, the large majority of people obviously find that voting is either very easy or somewhat easy.

Second, we know that ease of voting is not one of the most important considerations that influence people's decision as to whether to vote or stay home on election day. In other words, the people who abstain from voting do so for other reasons that are not associated with how easy it is to vote.

In conclusion, with respect to the normative aspect and inclusion of indigenous people in Canadian society, I don't see any reason not to include indigenous languages on ballots.

However, with respect to the empirical aspects, from my reading of the documentation, we should not expect a significant increase in electoral participation by indigenous people, because the reasons why they abstain often lie elsewhere than in the ease of voting. While this bill is noble from a normative point of view, it does not consider those factors, for example indigenous people's interest in Canadian politics.

With that said, my conclusions are based on relatively limited research data and on samples gathered from indigenous people.

I think we have a great need for further studies to help us think about these questions. I am thinking, in particular, of the study by Patrick Fournier and Peter John Loewen published in 2011 and the study by Allison Harell, who is with us today, and her colleagues that was published in 2010.

That concludes my statement.

[The Chair, Liberal, Bardish Chagger]

Thank you so much.

You have given us a lot of information. Thank you very much.

I'm going to ask everyone to speak a bit more slowly to help with the interpretation and so that everyone is able to understand the remarks in the language of their choice.

It's now your turn, Professor Newman. You have the floor for five minutes.

[Professor Dwight Newman, Professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan, As an Individual]

Good morning, honourable members. I'm Dwight Newman and I work as a professor of law and Canada research chair in indigenous rights in constitutional and international law at the University of Saskatchewan. I appear today as an individual.

Proposals to add indigenous languages to election ballots in Canada have circulated in recent years. There's a new imperative to thinking on these matters insofar as Canada adopted last year the United Nations Declaration on the Rights of Indigenous Peoples Act, or UNDRIPA, which received royal assent on June 21, 2021.

Amongst its provisions, section 5 of that act establishes a statutory requirement for the government taking “all measures necessary to ensure that the laws of Canada are consistent with the Declaration.” That's a far-reaching statutory obligation, and it bears on many topic matters that are seldom discussed.

Article 13.2 of the UN Declaration on the Rights of Indigenous Peoples has a clause requiring that states “take effective measures to ensure...that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means”.

That clause of that article has received very little attention in the UNDRIP scholarship, but it represents an important commitment concerning participatory rights of indigenous peoples. Partly because article 13.2 establishes rights for indigenous peoples as collective entities, though, rather than pertaining to individuals, article 13.2 probably does not mandate any specific requirement of ballots being available to individual indigenous voters in indigenous languages.

However, the adoption of such a practice would certainly be in accord with the underlying objectives of the UNDRIP. The enhancement of indigenous participation in democratic decision-making accords with the declaration and represents good policy in a democratic state meant to have full involvement of all voters.

Sections 3 and 5 of the Canadian Charter of Rights and Freedoms, protecting the right to vote and rights against discrimination, may well offer stronger legal arguments against impediments to voting. As with other barriers that Elections Canada has worked to overcome, there are arguments for it to overcome linguistic barriers, particularly in the case of individuals who use other languages and have limited proficiency in English and French.

In some ways, Canada is behind on these issues, notably as compared with the United States. I draw the committee's attention to the 1975 amendments to the U.S. Voting Rights Act that added section 203, which established various forms of language assistance in districts where that was needed for minority language communities. That's decades back that the U.S. has done this, and there have been challenges at times on implementation, which has not always been smooth, but there has been a statutory commitment there in U.S. legislation.

In the context of indigenous peoples, though, the U.S. has had some ongoing challenges. Here, I would draw the committee's attention to the March 2022 “Report of the Interagency Steering Group on Native American Voting Rights”, which was just reported to the White House and has examined a range of factors affecting indigenous participation in elections. There is discussion of language factors, but there is a wide range of other factors that need to be taken into account, which raises questions about what are going to be the most effective means of enhancing indigenous participation in elections.

With regard to the language issues at hand, there are a number of key questions to consider, which I know this committee has already been discussing in some ways: whether Nunavut is a special case and where there's a particularly strong argument; what population cut-offs might bear on whether it works to provide translation of ballots in a particular riding; issues concerning what particular form of indigenous languages might be used on ballots, whether in the form of syllabics or in transliterated forms in the context of languages that have both versions; and other issues concerning the costs generally and whether those costs might be more optimally invested in other ways of supporting indigenous electoral participation.

There are many things that we could talk about. I'll just say that there are also many options the committee could consider in terms of the most effective ways of advancing indigenous electoral participation in cautious ways. The use of sample or facsimile ballots is an option, rather than changing the main ballot. Other forms of language assistance are possible. The committee could also think about something like a pilot program in the context of Nunavut that would test things out in one riding before making Elections Canada try things out across the country all at once.

I'll stop there and just say that there are big questions about bridging principle, the aims of legislation and what legislation can and will achieve in practical ways.

It's wonderful to see the committee working to live up to commitments of supporting indigenous electoral participation. It's important to do that right.

[The Chair, Liberal, Bardish Chagger]

Thank you, Professor Newman.

Now we go to Professor Harell.

Five minutes goes to you. Welcome.

[Dr. Allison Harell, Professor, Political Science Department, Université du Québec à Montréal, As an Individual]

Thank you. Thank you for the opportunity to be here, Madam Chair.

I'd like to acknowledge that I'm calling from the unceded territories of the Kanien’kehá:ka nation on whose land the Université du Québec à Montréal is located.

I'd also like to situate my comments. I speak for myself as a specialist in the study of electoral democracy, and I'm particularly interested in my own research in how various groups and people can build a more inclusive democracy. My remarks this morning will be focused on what research in this area tells us.

I'd like to raise three issues that are worth considering when thinking about the inclusion of indigenous languages on ballots.

First, I think it's important to think about this issue from the perspective of barriers to political participation. We know quite a bit—and my colleagues have mentioned it on the committee this morning—about the reasons that people do not engage in federal elections in this country. In a past study that I conducted with Dimitrios Panagos and Scott Matthews in 2009 for Elections Canada, we showed that, as we have seen across many countries and contexts, socioeconomic resources are an important barrier to all electors. This is true as well for indigenous people's participation in electoral politics. Yet we've also shown the importance of trust in the federal government and the salience of indigenous issues as mobilizing, especially for young indigenous electors. Here, I think, is where our findings are important for the current discussion before the committee.

The presence of indigenous languages on ballots is an important symbolic gesture to indicate that Canada is interested in the participation of indigenous peoples in the electoral process, that their voices are important and that we want to make sure that they're included in that conversation.

Indigenous peoples were, as you know, one of the last groups in Canada to have restrictions on their voting rights removed, which was in 1960, and historically have participated in federal elections at some of the lowest levels, though this varies across individual elections as well as across indigenous nations.

It's important to note that participating in elections is a choice, and while it is important for free and fair elections to remove barriers to participation, many indigenous people and nations choose not to participate in Canadian elections.

I'm not speaking on behalf of these communities in any way, but I think it is important to recognize that Canada's colonial history means that we need to ensure that indigenous people can participate on their own terms in our electoral processes while acknowledging that some may not see the electoral process as either legitimate or their own.

Making ballots multilingual could be a step to increase the legitimacy of the electoral process for these electors, and perceptions of legitimacy not only support broader participation but are also important for the health of our democratic system.

This brings me to my second point. As the Chief Electoral Officer of Elections Canada pointed out to this committee on March 29 of this year, the diversity of languages, the complexity of the production timelines and translations and the current regulatory framework make putting in place multilingual ballots a challenge.

I don't want to discount the organizational challenges that implementing this change would create, but I would like to point out that the presence of a ballot in one's own language can have multiple benefits. There are symbolic benefits. The importance of recognizing the rights of indigenous peoples, cultures and languages to exist and be included cannot be understated.

There is also a benefit of access for indigenous peoples to participate in their language of choice. For indigenous electors who speak a language other than English or French and prefer to speak a language other than English and French, English and French only ballots can create an unfair barrier to participation.

I think there's also a benefit towards reconciliation. If we're serious about reconciliation with indigenous peoples, then beyond the symbolic and access benefits to indigenous peoples themselves, we need to make a strong statement as settlers that indigenous nations are on equal footing with English and French in this country.

This brings me to my final point. I'm not an indigenous person; I'm a settler on these lands. I think the key issue for considering indigenous languages on ballots should be whether indigenous nations and electors want them in order to fully participate in the electoral process. While there may be costs and challenges in implementing multilingual ballots, I think reconciliation requires a serious commitment on our part to make accessible the electoral process to indigenous electors in their own language.

I'm glad we're having this conversation today, and I'm glad to be taking part in it.

Thank you.

[The Chair, Liberal, Bardish Chagger]

Thank you, Professor.

We will now get into six-minute rounds starting with Mrs. Block, followed by Mr. Turnbull. We have Mr. Turnbull, Madame Gaudreau and then Ms. Idlout.

Mrs. Block, you have the floor.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you very much, Madam Chair.

Through you I would like to welcome our witnesses to our meeting, and thank you very much for being here and joining us and providing us with your testimony.

I'm going to start by directing my questions through the chair to Professor Newman.

Welcome, Mr. Newman. It's good to see you joining us from Saskatchewan.

We have heard in previous testimony, or it has been suggested in previous testimony, that Canada is under a legal obligation to include indigenous languages on federal ballots, but in your comments you stated that there was no such obligation set out in UNDRIP.

Is there any other legislation, to your knowledge, that would make such a requirement?

[Prof. Dwight Newman]

The strongest argument, in my view, would come from the Canadian Charter of Rights and Freedoms and the possibility of an argument that there is an impediment to the right to vote and/or non-discrimination rights. If there were a successful argument along those lines—and I am not aware of any case law that has gone in that direction—it would probably bear not just on indigenous languages, but also on other minority languages in ridings that have populations that are similarly situated in some respects in terms of speaking another language and not having proficiency in English or French at the highest of levels, and thus facing a barrier.

Beyond that, I wouldn't be aware of other legislation.

There would be some who might make an argument around section 35 of the Constitution Act, 1982, but I don't think it can easily apply to a federal election process, as opposed to providing general rights concerning maintenance of indigenous languages.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you very much.

You also mentioned that UNDRIP establishes rights for indigenous people as collective entities, rather than as individuals.

Can you explain that difference and the impact it has on indigenous individuals in the political process?

[Prof. Dwight Newman]

UNDRIP, in some of its articles, uses the terminology of “indigenous peoples” having certain rights. In other articles it uses the terminology of “indigenous individuals” having certain rights, or certain rights are held by “peoples and individuals”.

In the context of article 13.2 on political proceedings or legal and administrative proceedings, the reference is to “indigenous peoples”. A natural reading of the language there would end up suggesting that it concerns the opportunity of peoples through their representatives to participate in political processes or legal processes. If there is a duty to consult issue where representatives of an indigenous people are concerned, they would certainly have rights that arise due to article 13.2, but it doesn't necessarily imply rights for individual indigenous voters in the context, say, of an election process even while there may be sound policy arguments for that, and welcome reasons for that in light of broader values.

But I don't take the view that there is a specific legal right that would arise there.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you very much.

Perhaps this is my last question, as I don't know how much time I have left.

You did touch upon facsimiles of ballots. Would facsimiles of ballots in indigenous languages provided in voting booths be an alternative that would also be in the spirit of UNDRIP as it is currently set out?

[Prof. Dwight Newman]

Looking at some of the literature on the United States, they use the term “sample ballots”, which are somewhat the same idea as a facsimile ballot that I think Elections Canada talks about.

Insofar as that removes a barrier, it could be an effective way of removing a barrier and meeting the legal concerns that would arise there, as well as some of the policy concerns.

Obviously there is a different symbolic connotation to that, and the committee would need to weigh that, and those engaged with this issue need to weigh that over time.

But there are challenges with changing the ballots themselves in terms of accessibility for others. A crowded ballot raises issues for access by persons with certain disabilities, so there are complex choices to be made, is what I would say. If there can be effective ways of surmounting barriers while avoiding problems, that's probably always good policy.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you.

This is my final question. Are you aware of any other jurisdictions that are either addressing this issue after adopting UNDRIP or looking at including indigenous languages on their ballots?

[Prof. Dwight Newman]

I'm not aware, at the present time, of others that have made specific moves on this issue after UNDRIP. There may be some of which I'm unaware.

As I mentioned, the United States, even since 1975, has made some efforts around this issue, although in the State of Alaska there had to be litigation around this. There were complexities confronted, partly because of issues of multiple dialects of languages and how those would be used in different parts of a constituency or whether all of those would somehow appear. There were some challenging questions. The United States has made these efforts for decades.

I'm not an expert on the American context. It would be worthwhile drawing significantly upon some of that experience and finding out more about it.

[Kelly Block, Conservative, Carlton Trail—Eagle Creek, SK]

Thank you very much.

[The Chair, Liberal, Bardish Chagger]

Thank you for that exchange.

We will now go to Mr. Turnbull for six minutes.

[Ryan Turnbull, Liberal, Whitby, ON]

Thanks, Madam Chair.

Thanks to all of our witnesses for being here today. I'm really finding this discussion rich. I know we're just beginning today's discussion, but we've been building, meeting over meeting, a really good, in-depth analysis of this important issue. Certainly, our last meeting revealed testimony that was really impactful for me. All of the meetings, I would say, have done that.

Maybe I'll start with Mr. Newman. I'm interested in picking up on the theme of UNDRIP. As you said, UNDRIP received royal assent in the Parliament of Canada in June 2021. I note that we often say that UNDRIP now has to be implemented, but I'm wondering about this. From your perspective, Professor Newman—I know you've spoken to this already in some of your opening remarks—are there any other articles within UNDRIP that obligate the government to respond to this very important issue of indigenous languages being included on ballots? I note you've already mentioned article 13.2. I have that in front of me here. I find that really relevant. I also have looked at articles 1, 9 and 15, and I wonder if you have any comments on any of the other articles within the United Nations Declaration on the Rights of Indigenous Peoples.

I'll throw it to you first. Thanks.

[Prof. Dwight Newman]

Thank you. I'm just pulling up my copy of UNDRIP, if we're getting into further articles of it.

I'll say, first of all, with respect to the commitment on what's sometimes called “implementation”, Canada has passed a particular statute that has two key obligations in it. One concerns an action plan to pursue the objectives of the declaration. The other part is a commitment to seek the consistency of Canada's laws with the provisions of the declaration. Those are two key commitments.

In respect of other articles of UNDRIP, they may shed light on the broader objectives of it. Certainly, article 1 is with respect to general provisions of international human rights law. If your suggestion is that this gives rise to an obligation in respect of indigenous languages in voting, it would be in the context of that obligation potentially arising with respect to other language communities as well. Article 9 concerns rights to belong to an indigenous community or nation and wouldn't bear directly on federal election processes, in my view. Article 15, concerning general provisions on the cultural rights and dignity of indigenous peoples, again sheds light on the objectives of the declaration, as all the articles should be read together. Again, it wouldn't bear as specifically on something like a federal election process.

Article 13.2 is the one that is, in my view, closest to the issue. Although, as I've suggested, in some ways the reading gives rise to limited consequences in specific terms, even while the broader objectives of indigenous participation in decision-making would call for good policy that promotes indigenous languages in this context.

[Ryan Turnbull, Liberal, Whitby, ON]

Thank you for that detailed response. I do appreciate it. Perhaps we can go deeper into that discussion.

I do also want to pick up on a theme that Ms. Block brought up, which was also something you mentioned, Mr. Newman, in your opening remarks about other jurisdictions. Specifically, in regard to the United States, you said that Canada seems to be a little behind compared with them.

I'm interested in whether there are any other jurisdictions around the world that we can use or learn from in terms of a model for this, such as whether they've used a phased approach to this.

Certainly, we've heard contrasting views that for Elections Canada there are significant operational challenges. I think some of those probably need to be overcome. I think we're in a position here to give some direction. I'm interested to note how maybe other jurisdictions have overcome some of the challenges and how they've done so over years or decades.

I would go to Mr. Newman first and then ask the other panellists if they'd like to weigh in.

Thanks.

[Prof. Dwight Newman]

The other panellists may have more to add on some of the other jurisdictions.

The most natural comparators for Canada on indigenous issues would be jurisdictions like the United States, Australia and New Zealand, in terms of some shared political practices combined with the nature of the colonial experience, the proportions of the population, and so on.

I understand that Elections Canada is in some discussions with the Australian context. They would be better prepared to shed light on that.

I looked mainly at some of the scholarship on the United States, a country that has been much more active than Canada in some respects on this issue. Someone going back to the history of 1975 could look into how it was that they managed to make the adjustment so quickly versus what one hears about the challenges Elections Canada thinks it would face.

Others may have more to add on other jurisdictions.

[Ryan Turnbull, Liberal, Whitby, ON]

I'd be happy to hear from the other panellists if they have any remarks.

I know that my time limit is up, Madam Chair, so I'll leave it at that, and maybe others can weigh in.

[The Chair, Liberal, Bardish Chagger]

Maybe I can allow a quick 30 seconds to the other two panellists.

[Dr. Jean-François Daoust]

Unfortunately, I am not knowledgeable enough beyond the Canadian case and the U.K., but I assume that New Zealand and Australia, as mentioned, would be the cases to consider.

[Dr. Allison Harell]

May I also intervene, Madam Chair?