Indigenous and Northern Affairs Committee on March 27th, 2018

[Grand Chief Edward John]

I will leave it at that. I do have a written submission, which I will present to the clerk.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you very much. I think your comments were well received and passionate. I appreciate your history and wisdom.

The questioning will now start with seven-minute rounds, so it looks like we'll probably have three. Each party will have an opportunity.

We're going to start with MP Danny Vandal.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Thank you very much, Grand Chief John, Craig, Marie-Claude, and Valerie. I appreciate your presentations. I appreciate as well all your hard work for many years on UNDRIP and getting it to this point, especially you, Grand Chief John.

I think it's been recognized by the sponsor and several people that UNDRIP does not create any new rights. The rights that we have are already in our Canadian Constitution, and they exist in this country.

Grand Chief, can you describe to me how UNDRIP provides clarity to the existing rights of indigenous peoples in Canada?

[Grand Chief Edward John]

Subsection 35(1), which is an important constitutional provision, has 17 words and says:

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

I would like to underscore the words “hereby” and “recognized and affirmed”. That was April 17, 1982. I was here under the late Prime Minister Trudeau. We fought for those words, except that the word “existing” was added by British Columbia and Alberta, because then the B.C. government was able to argue that “they've been extinguished, therefore they don't exist”. The courts rejected that argument.

From 1982 until recently, somehow we've had to go to the courts to prove that we exist as peoples and that our rights exist, our aboriginal rights and treaty rights. What is wrong when a nation cannot understand the word “hereby”? On April 17, 1982, the word “hereby” was there. What does it mean? It means “exist”. It doesn't say anywhere in there that we have to go to court to prove that we exist, or that we have title, or that we have to define it.

It's taken us this long to get to this place where the government actually can say, after dozens and dozens of court cases in British Columbia and across the country, where the courts have honoured the words of the Constitution to say they breathe life into the instruments.... The courts have said that the treaties have been honoured in the breach. Section 35 should have been implemented from day one but wasn't. We celebrated on April 17, 1982, but then we were in the courts in countless cases.

Now I think we're at this place where we need to talk, but not just about recognition. We have to talk about how we implement, how we recognize coexistence on aboriginal title and the coexistence of crown title. That's what we need to work out, and that process is under way now under the new federal approach to recognizing title: that remarkable presentation by the Prime Minister on February 14—one hundred years after the James Douglas proclamation—that said we're going to change this, we're not going to continue down this road of denial, and now we're going to embark on recognition and implementation. It's a good place to be.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

You went right to my next point. You're talking about the address the Prime Minister made in the House of Commons on February 14 whereby the government would commit to define those rights in partnership with first nations, Métis, and Inuit.

In essence, that is an essential next step to UNDRIP. Would you agree with that statement?

[Grand Chief Edward John]

I would take that word “define”, exchange it for another word, and say how these rights will “coexist”: how an indigenous government, an indigenous governmental authority, and the national government can work out the coexistence of their relationship.

In the process, you'll have to work out the details of the nature of that coexistence, but you're not denying indigenous lands or title to the lands. You're not denying indigenous peoples authority to govern themselves, and you're not denying crown title or crown authority. Now you're figuring out what the relationship ought to be. That's the nature of the work ahead of us.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

You're recognizing that the rights exist: a recognition of rights framework. That's good news.

Craig, do you have anything to add?

[Craig Benjamin]

I'll add one thing, which picks up on the Grand Chief's point about this long history of indigenous peoples bearing the burden of having to constantly prove their rights through these long and onerous processes. The declaration not only gives us an enormous body of substance developed by some of the best minds on indigenous rights in the world, but it also does away with the isolation of indigenous rights into this unique separate category and brings that into a larger world of human rights. With that, there's a fundamental shift in perspective.

The National Chief talked about looking at the positive obligations of the declaration, looking at the operative language. When we talk about human rights internationally, we talk about the responsibility to respect, protect, and fulfill that obligation to take positive action. I think if we see this as an instrument for Canada to take up that burden that's been on indigenous people's shoulders, and accept that positive responsibility to breathe life into and fulfill these rights, we'll see enormous progress.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Thank you.

I think I have only about 30 seconds left.

[The Chair, Liberal, MaryAnn Mihychuk]

Your time is very short.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

To Marie-Claude and Valerie, I saw that one of your questions was about how these rights will be given life. With the exercise we started over a month ago on recognizing and trying to define the rights in section 35, I see that as breathing life into UNDRIP, and Bill C-262, which we are talking about today, as one of the first steps we have to take.

[The Chair, Liberal, MaryAnn Mihychuk]

That is your time allocation.

We're moving over to MP Viersen.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Thank you, Madam Chair, and thank you to our guests for being here today.

My questions will be mostly for the Human Rights commission folks. I'd like to thank you in particular for being here today.

In 1977 Pierre Trudeau introduced the Canadian Human Rights Act. This act intended to protect human rights of Canadians by allowing them to file complaints of discrimination if they felt their rights had been violated. The 11 prohibited grounds of discrimination were.... You probably know the list. What is interesting about that particular act is that section 67 had an exemption for the Indian Act. People who lived under the Indian Act weren't able to use the human rights tribunal. The exception was repealed in 2008 under the Conservative government, which brought first nations into a level playing field when it came to human rights violations in this country.

I was hoping that you could address some of this. We hear all the time that indigenous rights are human rights. If that is the case, do we not have the mechanisms in place already to recognize all the things that are in this little booklet on the rights of indigenous peoples?

Thank you.

[Valerie Phillips, Director and General Counsel, Canadian Human Rights Commission]

You're right. Section 67 was repealed in 2008.

Just as a point of clarification, the Canadian Human Rights Act is primarily an act that allows complaints in the area of employment and services, so it's actually a good example to discuss today in terms of how a complaints-based mechanism can limit access to rights, as Marie-Claude, the Chief Commissioner, mentioned. The commission was before the Supreme Court of Canada just a few months ago about an interpretation of the Canadian Human Rights Act.

The repeal of section 67 promised that indigenous people could file complaints in relation to the Indian Act, so Mr. Matson and Mr. Andrews filed complaints about historic discrimination because they had women in their family who had married outside to non-status men. What happened when it went all the way to the Supreme Court was the question of whether the determination of Indian status under the Indian Act was a service under the Canadian Human Rights Act.

It was a technical legal question, but it's a good example of what happens when we rely on a complaints-based system, so the commission is supporting, as Marie-Claude mentioned, proactive and broadly accessible rights. I think it's important to point out that this government is currently considering that in the areas of accessibility and pay equity. There are ways to give rights to people without a complaints-based process. Ideally, that's a last resort. There has been too much on the backs of indigenous governments and individuals who have had to go all the way to the Supreme Court and back again.

The Human Rights Act is an incredible instrument. It's powerful. It has changed our country. Is it enough? No, not in this circumstance. There's a lot more that needs to be discussed.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

When this bill passes, in the future what in particular will change on the day it passes? It's not clear to me that we are going to go away from the “I must claim my own rights” system that we have currently, even though this clarifies a whole bunch of rights that we may or may not have. What will change on the day this bill passes?

[Valerie Phillips]

I think the beauty of this bill as it's drafted is that it allows for a considered dialogue and review of laws in Canada that has the proper voices at the table. Some of the concerns that have been raised are important ones, and I think they can be raised through the national action plan, the legislative framework that's been discussed. How they'll work together is I think something that's to be determined, but there's a 20-year reporting relationship that's contemplated by this bill.

I think what's starting is a really important dialogue. That's what will start the day after this bill is passed.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

You would say that's different from the current discussion we're having, just the addition that there is now a reporting mechanism? I wouldn't say that we have been on the road to reconciliation for a long time; it's been an aspirational document for a long time already.

Is it only the reporting mechanism? Is it that the government must now say that the House of Commons must have a report that says how far along we are on this journey? Is that essentially the only difference?

[Valerie Phillips]

Well, I think the bill requires a number of things. I don't know if any of my friends want to answer, but the wording talks about Canada ensuring that the laws of Canada are in compliance with the declaration.

[Grand Chief Edward John]

Thank you.

That word “aspirational” is a Conservative Party word, and I've never accepted that word. It's more than aspirational.

What happens on the day this bill passes? Well, the declaration has been in place for over 10 years. It is part of the international legal construct of human rights in dealing with indigenous peoples. The earth is not going to shatter, and the world is not going to come to an end.

It's the same as with section 35 when it came in. The Conservatives in British Columbia and Alberta were opposed to section 35 and said that the world as they knew it was going to end. It didn't come to an end on April 17, 1982, and neither will the adoption of this bill end the world as we know it.

There are going to be new standards. The human rights standards and the declaration have been there for over 10 years now, and they are important human rights standards. They exist as part of international law already. You can't pick and choose which human rights standards you apply. They all apply.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

That's my point exactly. What is going to change on the day that this...? If you are saying nothing is going to change, why are we going through this whole exercise?

[Grand Chief Edward John]

No, no. What will change is that there will be legal underpinnings for the rights and the declaration, and Canadian law will have to be considered in harmony with the human rights standards internationally. There are international human rights standards, some of which are absolute, some of which are relative. The absolute standards are around the issue of genocide. The relative standards are other standards that need to be balanced, and this is a process that will take place over the next decades.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Questioning now moves to MP Saganash.

[Romeo Saganash, NDP, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you, Madam Chair.

Welcome to all of you.

I will first turn to you, Ms. Landry.

I really liked your presentation, as well as those made by other witnesses.

I would like to start with a simple question. Have provincial commissions, or the Canadian Human Rights Commission, referred to the declaration in their decisions, either before September 13, 2017, or after September 13, 2017?

[Marie-Claude Landry]

The commission is what is referred to as an organization tasked with screening, or performing the first step. The commission has used the declaration on a regular basis in its presentations and its pleadings, as well in its promotional, prevention and policy development work.