Evidence of meeting #100 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 peoples.
A recording is available from Parliament.
NDP
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
Since we are talking about the Tsilhqot'in Nation, I will bring up a decision the Supreme Court of Canada rendered in June 2014.
The Supreme Court of Canada said that the Canadian Charter of Rights and Freedoms, which is contained in part I of the Constitution, and section 35, which is in part II of the Constitution, were sister provisions.
How does your commission interpret that?
Director and General Counsel, Canadian Human Rights Commission
If you don't mind, I'll respond in English.
The United Nations declaration makes it clear that indigenous rights, equality laws, and anti-discrimination laws are complementary and coexist. In fact, it's a wonderful example of how they can exist together.
Also, just to go back to your first question, the commission has been supportive of the declaration before Canada adopted it. The federal, provincial, and territorial commissions have put out statements of support for this declaration for years and have used it in litigation.
This isn't either-or. Madam Landry mentioned in her speech that there are tensions sometimes between individual and collective rights. The declaration talks about that as well.
I'm not sure if that answers your question.
NDP
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
When the Supreme Court refers to part I, which is the Charter of Rights and Freedoms, and part II, section 35, the sister provisions, how does that impact the role of the Attorney General of Canada, for instance, who is obligated under section 4.1 of the Department of Justice Act to make sure that any legislation, before it is introduced, is consistent with the Charter of Rights and Freedoms? Is there now a new obligation for the Minister of Justice to make sure that any legislation is compatible with section 35? Is that your understanding?
Director and General Counsel, Canadian Human Rights Commission
Arguably, there always has been an obligation that the framework should have been applied since 1982.
NDP
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
Thank you.
The Grand Chief, and perhaps Mr. Benjamin as well, could tackle this one. The Conservatives have a long-standing view that declarations in international law are aspirational and don't have the same status as international conventions or international treaties. Don't declarations have legal effect in this country? I'm reminded of what Justice Dickson said in one of the cases in 1999, which was that international instruments such as declarations are r“relevant and persuasive sources” to interpret domestic laws. Is that your view as well?
Political Executive Member, First Nations Summit
The 1948 Universal Declaration of Human Rights is still a declaration. It's not a convention, but it's widely applied internationally. This declaration is the universal UN Declaration on the Rights of Indigenous Peoples and sits in a parallel place with the 1948 declaration.
Secondly, I would ask that the researchers here look at—I think—the 1965 Vienna Convention on the Law of Treaties. The declaration stands, in its interpretation or use, in a position similar to those international treaties or conventions and it's not treated in any lesser category.
As well, where a state adopts an international instrument such as the declaration or conventions, subnational governments such as provincial and territorial governments in Canada would be bound by those standards as well.
Campaigner, Indigenous Rights, Amnesty International Canada
I fully agree. Declarations do have legal effect. In my presentation I gave examples of the declaration being used in courts, tribunals, and quasi-judicial bodies.
The UN Declaration on the Rights of Indigenous Peoples already does have legal effect in Canada. All declarations do, and I would suggest that this one in particular, because of its history, has a particular moral force and a particular authority that's very significant.
The other thing to point out is that the UN Declaration on the Rights of Indigenous Peoples was built on the basis of the interpretation of those conventions. For example, a full 10 years before the adoption of the UN declaration, the right of free, prior, and informed consent was elaborated by the UN expert committee that was charged with the interpretation and application of the International Convention on the Elimination of All Forms of Racial Discrimination.
NDP
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
Grand Chief, you spoke about coexistence in your presentation. Is that the direction this country should take with respect to indigenous peoples and their rights and interests in this country? I'm reminded of the Supreme Court in the Haida Nation case, where it talked about reconciliation. The Supreme Court said that the objective is to reconcile the pre-existing sovereignty of indigenous peoples with the assumed sovereignty of the crown. Is that the framework we should also consider?
Political Executive Member, First Nations Summit
Yes, the Supreme Court has referred that. That is a very excellent reference around the reconciliation between the assumed crown sovereignty with pre-existing aboriginal sovereignty.
Practically, what does it mean? We have the Delgamuukw and Gisday'way cases, and the Tsilhqot’in case that talks about the existence of aboriginal title as a legal interest in land: that it continues to exist and has never been extinguished, and that the indigenous people have the right to make decisions about that title, they can have economic benefits, and they can manage and occupy the territories.
Those are the rights. They've been established in the Supreme Court of Canada. How does that now coexist with crown title and crown authority? The way to sort it out is through that tables that are now developing across this country that would help resolve that through good faith agreements between the crown and indigenous peoples.
Liberal
The Chair Liberal MaryAnn Mihychuk
Thank you so much. Meegwetch. Merci.
That ends our session. I appreciate your patience and your coming out to present to us. Thank you very much.
The meeting is adjourned.