Indigenous and Northern Affairs Committee on March 27th, 2018

[The Chair, Liberal, MaryAnn Mihychuk]

Chief, it's 4:30.

[National Chief Perry Bellegarde]

Okay.

[The Chair, Liberal, MaryAnn Mihychuk]

You have time to hear from MP Saganash or....

[National Chief Perry Bellegarde]

Yes, I'd like to hear from MP Saganash.

[The Chair, Liberal, MaryAnn Mihychuk]

How much time do you have? All right. There you go. It's a deal.

[Voices]

Oh, oh!

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

You're so generous.

[Member speaks in Cree]

I respect that you have a time limit here. I'll be very quick with my questions.

Subclause 2(2) and clause 3 of Bill C-262 declare that the UN Declaration on the Rights of Indigenous Peoples has application in Canadian law already. Do you agree with that?

[National Chief Perry Bellegarde]

Yes.

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

Good. That's settled.

Are you aware of any other precedent of this type in other countries? This is going to be a legislative framework for the implementation of the UN declaration. Is there any other precedent that exists in other countries?

[National Chief Perry Bellegarde]

My learned colleague knows. Do you want to have Jennifer respond? There's Bolivia.

[Jennifer Preston, Consultant, Assembly of First Nations]

Both Bolivia and Venezuela have the UN declaration as part of their constitutions.

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

Thank you.

I've listened carefully to the present government in terms of what it is trying to achieve in reconciliation and so on and so forth. The words it uses are “recognition of rights”. In my view, recognition of rights already exists.

Our rights are recognized in the Constitution. Our rights have been recognized by the courts, by the Supreme Court in particular. Our rights are recognized already by the UN Declaration on the Rights of Indigenous Peoples, because it is said that those rights are inherent, so they exist because we exist as indigenous peoples.

Should it be “respect of rights” rather than “recognition” in this particular case? That's been the problem over the years. Although the Constitution recognizes our rights and although the courts have recognized our rights, the problem has always been the respect for those decisions by the Supreme Court and respect from governments of those rights.

[National Chief Perry Bellegarde]

[Witness speaks in Cree]

That's a very good question.

To all the respectful MPs here, I'm going to totally agree with that piece about it being more than recognition of rights. Even in my speech I added three other words; I added other words to my speech. It wasn't just recognition. We talk about enforcement, about implementation of rights. Those are operative words. It's one thing to talk about recognition of rights and respect for rights, but how are they honoured, implemented, and enforced according to the spirit and intent? Section 35 states that “existing aboriginal and treaty rights are...recognized and affirmed”.

They're already recognized and affirmed in section 35. We need to operationalize that and force those rights and implement those rights, but if we don't create a mechanism to do that.... That's the challenge. We need to have something, so go beyond the recognition, the respect for rights, and move towards enforcement and implementation of rights.

Êkosi.

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

I'll remember for the rest of my life that you've given me five minutes.

[Voices]

Oh, oh!

[The Chair, Liberal, MaryAnn Mihychuk]

I'll probably hear about it again, I would suspect.

[National Chief Perry Bellegarde]

My apologies, Romeo. I do have to leave. Thank you for the opportunity.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you for coming by. I'm sorry that we were delayed. I see that your suitcase is already leaving.

We'll suspend for a couple of minutes. I'd ask our new panel, Amnesty International Canada, the Canadian Human Rights Commission, and First Nations Summit, to come forward.

[The Chair, Liberal, MaryAnn Mihychuk]

According to the agenda, we now will start with Amnesty International.

Craig, you're welcome to start.

[Craig Benjamin, Campaigner, Indigenous Rights, Amnesty International Canada]

Good afternoon. My name is Craig Benjamin. I am here on behalf of Amnesty International. I'd like to begin by acknowledging the Algonquin people, whose traditional territory we have the privilege of meeting on today.

I'd like to thank the committee for this opportunity to speak with you today on such an important subject, one about which I feel very strongly.

The adoption of the United Nations Declaration on the Rights of Indigenous Peoples more than 10 years ago, on September 13, 2007, was an extraordinary moment in the global history of human rights. Here is an international human rights instrument specifically dedicated to ensuring the survival, dignity, and well-being of individuals, families, communities, and nations around the world that have been the subject of extreme systematic and pervasive violation of every right imaginable, resulting in situations of impoverishment, marginalization, and dispossession that are the tragic and appalling shame of the global community.

Despite the ravages that have been inflicted, here is a progressive, inspiring human rights instrument that was developed through the expertise, advocacy, and persistence of indigenous peoples themselves. In fact, the UN declaration represents the first time in the history of the United Nations that the very people whose rights are at stake, the very people who best understand the patterns of abuse that put their lives and cultures at risk, were able to sit down with representatives of states like Canada and consider how the international human rights system could be adapted and applied to meet their most urgent needs.

I'm a member of Amnesty International's campaign staff in Canada. I'm responsible for the research, policy, and advocacy work that helps our organization and our membership across Canada and around the world stand as allies in the promotion of the human rights of first nations, Inuit, and Métis individuals and communities. My job most days is to help call out the pervasive and profound injustices that have so often characterized Canada's treatment of indigenous peoples.

However, today I want to emphasize that the adoption of the UN declaration is a story in which Canadians can take genuine pride. I had the opportunity to represent the global movement of Amnesty International in the concluding years of the development of the declaration at the United Nations. I saw for myself the crucial role played by indigenous experts from Canada: people such as Romeo Saganash, Grand Chief Edward John, Celeste McKay, and Grand Chief Wilton Littlechild, who also addressed the committee. I saw the important supportive role played by Canadian non-governmental organizations such as the Canadian Friends Service Committee and Rights and Democracy.

I also witnessed the critical role played by Canadian government officials in the final days of the negotiation, when federal government representatives at the UN working group were able to build an effective working relationship with indigenous peoples from Canada and with the global indigenous caucus to help advance the declaration.

This collaboration set a positive example for other states. It made visible the spirit of the declaration and its repeated calls for partnership and collaboration, and it allowed this spirit of co-operation to triumph over the rigid defence of the status quo that had locked many other states into unconstructive, adversarial positions.

The text that eventually emerged was the product of the consensus reached between states and indigenous peoples. This consensus, this hard-won achievement, is also part of what makes the declaration so powerful and so important today. It's only fitting, then, that with Bill C-262, Canada again has an opportunity to set a positive example for the rest of the world.

Amnesty International has endorsed Bill C-262, and we commend all those members of Parliament who have supported it so far. Bill C-262 sets out a principled framework by which the promise of the UN declaration can be brought to life in Canada. The elements of the bill, a legislated commitment to reform laws and policies, to elaborate a national plan of action for the implementation of the declaration, and to ensure regular reporting to Parliament, are exactly what international human rights bodies like the UN Committee on the Elimination of Racial Discrimination have called on Canada to do.

Just as important, Bill C-262 sets out a framework for collaboration between the Government of Canada and indigenous peoples in this important shared work. This is wholly consistent with the spirit in which the declaration was developed, and it now takes that work to the next logical and necessary step. Bill C-262 is about how the declaration will be implemented in Canada, the principles that will guide this implementation, and the relationships among indigenous peoples, government, and Parliament necessary to do this in the best way.

Critically, the passage of Bill C-262 is not about a choice of whether the UN declaration will be implemented in Canada. That work has already begun. Canadian courts and tribunals routinely turn to international human rights standards to help understand how the laws passed by Parliament can be best interpreted and applied. It's a well-established Canadian legal principle that courts can and should presume that Parliament intends to honour Canada's international obligations, and that domestic laws must be interpreted in a way that complies with these obligations.

These are principles that are already applied across a wide range of law in Canada. There is no reason that the United Nations Declaration on the Rights of Indigenous Peoples should be excluded. In fact, the declaration is already being used in exactly this way.

To take one example, in 2012, as part of the long legal battle in a case well known to this committee, the first nations child welfare case, the Federal Court of Canada explicitly stated that the UN declaration should be used in the interpretation of the Canadian Human Rights Act and the federal government's responsibilities under that act.

After the first nations child welfare issue went back to the Canadian Human Rights Tribunal, many of the parties to that case, including the Canadian Human Rights Commission and Amnesty International, made arguments based on the interpretation of the declaration. In its final ruling, the Human Rights Tribunal did in fact make significant use of the declaration. In its discussion of the declaration, the tribunal also made this statement, which I think is particularly relevant to today's discussion. The tribunal said, “Canada’s statements and commitments, whether expressed on the international scene or at the national level, should not be allowed to remain empty rhetoric.”

There are numerous other examples of how the declaration is already helping shape how the laws passed by Parliament are interpreted and applied. For members of Parliament interested in better understanding the declaration's provisions on free, prior, and informed consent, there is an excellent summary in a 2014 report from a federal impact assessment panel, one that reviewed the proposed New Prosperity mine in British Columbia. That panel appropriately took note of the fact that the Tsilhqot'in Nation had withheld their consent. It took that lack of consent into consideration in its finding that the mine would have serious impacts on their lives and culture.

We can anticipate that Canadian courts, tribunals, and other bodies will continue to play a role in interpreting and applying the declaration in the future, but there are obvious drawbacks if indigenous peoples have to continue to rely on such mechanisms as the primary way to give effect to rights and protections set out in international law. Chance can play a large role in deciding what issues end up before the courts. Legal and administrative hearings can be extremely slow and costly to all involved. Requiring indigenous peoples to go to court if they want their rights respected imposes an onerous and unfair burden, and such processes are inherently adversarial, something that runs contrary to the intention of reconciliation.

Bill C-262 provides an alternative: an opportunity for a collaborative process in which priorities can be mutually agreed and systematically advanced, where Parliament will remain apprised of the progress made and the government will be held accountable. This is a model that's not only needed in Canada; it's one worth promoting to the world.

Finally, on that note, Canada should not interpret and apply the UN declaration in isolation. Other countries are also grappling with its implications. International mechanisms, such as the UN Special Rapporteur on the rights of indigenous peoples, the UN Permanent Forum on Indigenous Issues, the UN Expert Mechanism on the Rights of Indigenous Peoples, and treaty bodies, all continue the work of interpreting the standards that are set out in the declaration. While Canada has the potential to set a positive example for the world, Canada also has much to learn from these processes.

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

We now move to the Canadian Human Rights Commission, with Marie-Claude Landry and Valerie Phillips.

[Marie-Claude Landry, Chief Commissioner, Canadian Human Rights Commission]

Good evening.

I would like to begin by acknowledging that we are meeting on the traditional territory of the Algonquin people.

Thank you for inviting the Canadian Human Rights Commission to take part in your study into Bill C-262. I'm joined today by Valerie Phillips, the commission's general counsel.

Allow me to briefly tell you about the Canadian Human Rights Commission. Internationally, we are recognized as Canada's human rights watchdog. Domestically, we promote and protect human rights in Canada.

As part of our protection mandate, we receive and assess human rights complaints that relate to federal jurisdiction, and once we assess them, we determine if a complaint is referred to a separate body, the Canadian Human Rights Tribunal, for adjudication.

The commission embraces the declaration and supports this bill as an effort towards ensuring that human rights justice is available to all indigenous peoples in Canada. Implementation of the declaration moves us all towards greater reconciliation.

Testimony you have heard or will hear from indigenous peoples is of capital importance. The commission would like to offer a unique perspective—a perspective nourished by our experience and our work with indigenous people.

As an early adopter, the commission has integrated the declaration in all aspects of its work, such as its training of employees, its pleadings, its public statements, its publications and its work in policy development.

Integrating the declaration in our work is done in an effort to further the goals of this important human rights instrument. More specifically, it's a matter of normalizing its use in Canadian law and society.

Over the past 10 years, since the repeal of section 67 of our act, 9% of the commission's complaints have involved indigenous people or issues. The declaration deals with the principles of equality and non-discrimination that parallel the Canadian Human Rights Act.

As a result, numerous litigations have been impacted by the declaration, most notably the First Nations Child and Family Caring Society v. Attorney General of Canada (Representing the Minister of Indian Affairs and Northern Development Canada).

Based on this experience, we have two questions for your consideration. First, who will have access to these rights when the bill is passed? Second, how are these rights given life?

First, when this bill is passed, will it be clear who has access to these rights? At first glance, the answer may appear obvious—first nations, Métis, and Inuit peoples—yet issues surrounding indigenous identity are a source of continuous, lengthy, and costly litigation.

Over the course of the last 10 years, the commission has dealt with approximately 160 complaints that touched upon indigenous identity issues, engaging matters such as band membership, legislative benefits or rights, and status. These complaints can be lengthy and oftentimes very complex.

This is also evidenced by the numerous challenges to the Indian Act, the Daniels case, and an older Supreme Court decision about whether Inuit people fell under federal jurisdiction. What distinctions, if any, are to be made regarding first nations, Inuit, or Métis peoples? Clarification of this issue should be made a mandatory requirement in the national action plan or in the framework on the recognition and implementation of rights announced by the federal government in February 2018.

A second question we have relates to how the rights embedded in the declaration will be made available to the rights holders. If the UN declaration informs the content of section 35 of the Constitution, then rights holders will be able to assert these rights through a variety of court processes and administrative tribunals. However, our experience has been that proving these rights under section 35 has been an uphill battle for indigenous peoples.

We are concerned that this high onus will create a barrier for those seeking to exercise their rights as articulated in the declaration. If the goal is to ensure broad access to these rights, then clear language should be added to the legislation specifying how rights holders can access their rights.

It is our position that these rights should be made broadly and proactively available to all indigenous peoples and should be easy to access, and that there should be clarity to the scope of these rights and how they will apply in Canadian law. Greater and easier access to justice is a key component of human rights justice and, one could argue, of reconciliation as well.

These two questions—who is covered by these rights and how—may strike you as more theoretical in nature, yet our experience has clearly shown that organizations like the commission continue to struggle with them.

Article 1 of the declaration speaks of both collective and individual rights protection. From our perspective, concrete guidance is needed to relieve the tensions between collective and individual rights. This includes the universality of human rights protection as it relates to indigenous self-determination and self-government.

The clearer Parliament can make the application of rights, the more likely these rights will be accessed. We know this because easy access to justice has not always been the case.

In 2008 a significant barrier was lifted, giving indigenous people the ability to make a discrimination complaint under the Canadian Human Rights Act when it relates to the Indian Act. Up until then, there had been a 30-year ban on these kinds of complaints.

Yet since these changes to the act were made, there has been ongoing litigation about the scope of these rights as they apply both to the federal government and to indigenous governments. This past year, the commission argued the Matson and Andrews case before the Supreme Court of Canada, which touched upon all of these issues. We are awaiting this important decision, because it will address the question of Parliament's intent regarding the commission's ability to accept complaints related to a person's Indian status.

In conclusion, one thing we know after 40 years of human rights experience is that people living in vulnerable circumstances will often abandon their complaints rather than fight these lengthy legal battles. Time, cost, access, and lack of clarity all serve as barriers and may prove to be counterproductive to the ultimate goals of the bill.

The commission is eager to see the full potential of the UN declaration realized. Our experience in integrating it into the core principles of human rights justice has been positive and will continue to guide our work.

Madam Phillips and I are happy to take any questions you may have. Thank you very much.

[The Chair, Liberal, MaryAnn Mihychuk]

Very good.

We will hear from Grand Chief Edward John of the First Nations Summit.

[Grand Chief Edward John, Political Executive Member, First Nations Summit]

Thank you.

I acknowledge the Algonquin people on whose ancestral lands where we gather here. I also want to acknowledge your presence and the work you are doing on this particular bill.

I want to acknowledge the presentations by my colleagues. Craig Benjamin's remarks are part of the remarks I wished to cover, and I think he's done a very capable job on the history and the role of indigenous peoples in the development of that particular UN instrument, on the work of the Human Rights Commission here in Canada, on part of the work under the Paris principles, and on the role of human rights commissions, both nationally and subnationally with provincial human rights bodies.

I attended the remarkable event in the House yesterday. I heard and saw the dignity with which the Tsilhqot'in chiefs were present, but I also saw and heard the dignity of your presentations from the parties, from the representatives who spoke. How moving that was in the context of Canadian history, both now and going back in time to the history of British Columbia, to see the dignity with which the chiefs who were executed were exonerated and to see the lifting of a heavy load from the shoulders and the backs of the Tsilhqot'in peoples ourselves and indigenous peoples in British Columbia.

I heard the apology that was extended to Tsilhqot'in peoples and that helped lift them from that place of very deep grieving and sadness. To me, it is a very significant step, and it is an important act of reconciliation. I come from north of the Tsilhqot'in people. We share the same language. We're neighbours and relatives, and have been throughout our history, and we know each other well. Their pain was really something that as children we heard about, too, with the execution of those five chiefs in Quesnel. I stepped back and listened very carefully to the six presentations that were made. It showed a remarkable turning of a chapter in our country.

In that regard, I want to talk about article 43. There are 46 articles in the declaration, and everybody wants to talk about one article, or maybe two. We have to take the 23 preambulatory paragraphs and 46 articles in the declaration and look at them together. Article 43 is the purpose of the declaration.

Craig was talking about Amnesty International and many other great non-governmental organizations, indigenous peoples, and I was there during the negotiations of the declaration over many years. I was there when Louise Arbour was the high commissioner. Our former justice of the Supreme Court of Canada was the High Commissioner for Human Rights when the declaration was approved. You should call her as a witness here. She has a remarkable depth of knowledge. She was the one who really cracked the whip, in a way, to get the declaration done. The ambassador from Peru, a remarkable chair, was able to assemble all of the disparate arguments and positions in Geneva and come up with one document. There was not consensus on everything. Right to the last minute, there were disagreements, yet we came up with the one document.

There was a vote in the Human Rights Council. I was there that day. I saw the vote. It disturbed me that Canada voted no.

Canada actually had been a very constructive partner in the development of the declaration. I need to say that. The people from Indigenous and Northern Affairs and other federal departments who were there—plus the mission in Geneva—were able to bring to bear a long process of collaboration that made the declaration possible. They were collaborating with very disparate indigenous peoples around the world, different governments across the world, and 192 states at the UN.

It was remarkable to see the vote that day. In 2006 that declaration was sent to the General Assembly in New York. It got delayed for one year, but when the time came to vote, it was adopted at the UN General Assembly. I was there as well. Following that, I spent six years—two three-year terms—as an expert member of the UN permanent forum on indigenous issues, the body that advises the United Nations on indigenous matters globally. There are 370 million indigenous people around the world.

I chaired the permanent forum for one year. It was an honour to be involved with indigenous peoples, state parties, non-governmental organizations, and UN bodies in New York.

Now I want to come back to the story about the Tsilhqot'in chiefs, the exoneration and the apology, the dignity, and that act of reconciliation. Article 43 states, “The rights recognized herein constitute the minimum standards for the survival, dignity, and well-being of the indigenous peoples of the world.” Survival, dignity and well-being....

Following the apology, there was a three-hour session with the Tsilhqot'in leadership and chiefs. A Tsilhqot'in woman stood up and for 45 minutes spoke about the Tsilhqot'in women. If you recall what the Tsilhqot'in chiefs said, they declared an act of war because their women were raped by those coming into their territory. A young girl.... We talked about the dignity and well-being of the Tsilhqot'in people. You take that concept and apply it to all indigenous peoples in this country. Bill C-262 should be supported by all parties, the same way you supported the Tsilhqot'in people in the House yesterday, because it's about the same issues.

This instrument is important to us. On February 14, 1859, the governor of the colony of British Columbia issued a proclamation saying that “[a]ll lands...and...Mines and Minerals therein, belong to the Crown in fee”. This was an act of aggression, similar to what Russia has done with the Crimean peninsula. They took over that land, so what were the people to do? They declared war.

On February 14, 2018, Prime Minister Justin Trudeau got up in the House and spoke at length. He said that we're going to turn the page, we're going to recognize the rights of indigenous peoples, we're going to implement them. I heard the words “recognition” and “implementation”. The most insidious instruments of history are the doctrines of terra nullius and the doctrine of discovery and the papal bulls that gave them moral authority through the European notions of international law in the late 1400s and the early 1500s.

We live with that today. The consequences of that are what is before us. This bill and this declaration can help turn the tide and level the playing field. That's what I want to propose to you. I haven't read any of the notes from my speech, but I really think that the presentation by the national chief was very good. I endorse that, as I've said, and I endorse all the answers to his questions, so I'm not taking any.

[Voices]

Oh, oh!