Indigenous and Northern Affairs Committee on March 27th, 2018

[The Chair, Liberal, MaryAnn Mihychuk]

This is meeting 100 of the Standing Committee on Indigenous and Northern Affairs of the 42nd Parliament, 1st session. We're talking about UNDRIP and, pursuant to the order of reference of Wednesday, February 7, 2018, Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.

Before we get started, we recognize that we're on the unceded territory of the Algonquin people here in Ottawa. We are in a process in Canada of coming to terms with the truth and moving in reconciliation.

It's our great honour to have the Grand Chief of the Assembly of First Nations in front of us today.

We welcome you. You'll have 10 minutes to present and then we'll move into questioning.

Excuse me. Before I open the floor to you, I see that we have maybe a bit of business to conduct.

MP Anandasangaree.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Madam Chair, given that we're starting a bit late, I wonder whether we can split the time. We have an hour and a half, more or less. We could do 45 minutes for the first panel and 45 minutes for the second.

[The Chair, Liberal, MaryAnn Mihychuk]

I see shaking of heads. The Grand Chief needs to leave at 4:30. That solves the problem even more. He'll take 25 minutes.

We shouldn't cut into your time any more. Welcome, Perry. Please go ahead.

[National Chief Perry Bellegarde, National Chief, Assembly of First Nations]

Thanks, Madam Chair, and thanks, Gary, for that attempt. I have another function, but I'll get right into this, Madam Chair.

[Witness speaks in Cree]

I'm happy to be here thanking you all.

[Witness speaks in Cree]

I give thanks to the Creator for this day.

Also, we acknowledge the Algonquins, the Anishinaabeg peoples, and give them thanks as well.

To the members of the committee, I do have this written text, so we'll get right into this.

Madam Chair, members of the committee, friends, and relatives, thank you for inviting me here today to share the perspectives of the Assembly of First Nations on Bill C-262, the United Nations Declaration on the Rights of Indigenous Peoples act.

First nations across the country strongly support a legislative framework to advance the implementation of the UN Declaration on the Rights of Indigenous Peoples and support Bill C-262. We have waited a long time for this. We continue to call on all parties in this House and on each and every parliamentarian to support Bill C-262.

At the end of my presentation, I will suggest a few amendments to enhance the text and to reflect the current text, but I want to start by making a few simple points.

The United Nations declaration doesn't create any new rights. Neither does Bill C-262. These rights are inherent, and they're pre-existing. The UN declaration affirms indigenous peoples' human rights. What we're talking about now is realizing those rights, implementing those rights, and enforcing those rights, and finding a better way to work together so that we don't have to spend millions of dollars and waste years fighting in courts instead of advancing reconciliation. Closing the socio-economic gap for first nations and building a stronger economy and a better Canada for us all is what this means.

This bill is about working with first nations to realize existing rights. It's about working with us to establish the laws, policies, and practices needed to respect our rights and our status as self-determining peoples, replacing the laws, policies, and practices that have denied our rights for decades and have led to the socio-economic gap we are working to overcome today. This bill is reconciliation in action—real reconciliation—and this is where the rubber meets the road and actions replace words.

The chiefs in assembly have passed numerous resolutions calling on the Assembly of First Nations to work with Canada to advance the full implementation of the declaration. They support this legislation. They support the co-development of a national action plan, as required in this bill and by call to action number 44 of the Truth and Reconciliation Commission's 94 calls to action, which Canada has pledged repeatedly to fulfill.

Prime Minister Trudeau, Minister Wilson-Raybould, and Parliamentary Secretary Yvonne Jones have all affirmed the government's support for Bill C-262.

Bill C-262 will provide momentum and a plan for implementing the UN declaration in Canada, working with first nations in an orderly and timely way. This is something that Canada has repeatedly committed itself to do under several UN resolutions, including the declaration itself.

Passing this bill will advance Canada, as well as first nations peoples, in many ways. It will implement key aspects of the TRC calls to action. It will see Canada move forward on existing international commitments regarding human rights. It will provide a framework for the federal government to work in partnership with first nations to ensure that Canada's laws, policies, and practices are revised to realize rights, recognize rights, and implement and enforce rights, rather than deny rights. Also, it will provide transparency and accountability for everyone by requiring an annual reporting to Parliament.

I want to spend a few minutes now to talk with you about free, prior, and informed consent. That seems to be a focus of concern, so I want to be very clear on that. I know that it's talked about federally and provincially and by industry, so I want to focus on that right up front.

FPIC—free, prior, and informed consent—was not created in the UN declaration. It was not created in this bill. It already exists in international law. It is an essential element of the right of all peoples, including indigenous peoples, to self-determination, which Canada has recognized for decades.

Consent is the essence of treaty-making between self-determining nations. First nations already have the right to participate in decisions that can affect our rights, property, cultures, and environment, and our capacity to exercise our right to self-determination.

We already have the right to determine our own priorities, and we cannot be denied our own means of subsistence. What's needed is a better process, one that is designed with first nations and involves our people from the start. There is no need to reinvent the wheel here. Free, prior, and informed consent exists around the world. There is already a lot of international jurisprudence to draw on.

A lot of people want to focus on that V-word, “veto”, but the word “veto” doesn't appear in the declaration. It isn't in this bill. The declaration acknowledges the interrelationships between the rights of all people and peoples. To those concerned about free, prior, and informed consent, I would say this: you simply cannot tell a people that they have no right to say no to what happens to them in their own territories.

Imagine a system where you can't say no. That's what we have had for more than a century under the Indian Act, and that's what has led us to this mess we're in today. First nations must be part of the regulatory processes and all the decision-making respecting anything that affects us.

Working with us to figure out what that looks like is not only unavoidable and not only the right thing to do, but it's the smart thing to do. It will lead to more balanced, fewer acrimonious and better decisions, fewer court battles, more timely decisions, and better outcomes for us all. If you want economic certainty and economic stability, embrace the UN Declaration on the Rights of Indigenous Peoples and embrace the support for Bill C-262 going forward.

First nations are already exercising our right to say yes and our right to say no in regard to major energy and natural resource projects. This is all part of the broader conversation that takes place every day between different governments about resource projects—federal governments, provincial governments, territorial governments, first nations governments, and municipal governments. We are already part of that national intergovernmental dialogue, but we have more work to do, and we'll continue to exercise our inherent jurisdiction, sovereignty, and treaty rights as equal partners, not as subservient or junior jurisdictions.

This committee will no doubt offer some comments to enhance Bill C-262 in light of recent developments. In closing, I'll leave behind some recommendations, and I'll touch briefly on them now.

In the preamble, the bill refers to “doctrines” of “superiority”. First, the AFN suggests specifically naming the doctrines of discovery and terra nullius. The text could read as follows:

Whereas all doctrines, including discovery and terra nullius, and all policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust.

We also suggest some additional paragraphs in the preamble. Canada has repeated four principles to guide the approach to working with first nations: recognition of rights, respect, co-operation, and partnership. Including those principles in this law would be a welcome addition to this bill. I also suggest that there is a value in highlighting the importance of treaties, agreements, and other constructive arrangements.

My suggestion for additional text for the preamble is already in the leave-behinds you have. It reads:

Whereas Parliament and the government of Canada are committed to relationships with Indigenous peoples that are based on recognition of rights, respect, cooperation and partnership, which are essential elements in Canada's constitutional framework and international human rights law;

Whereas the standard of Crown conduct in all actions, including government litigation strategies, must be consistent with these elements; and

Whereas treaties...and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between Indigenous peoples and States.

I just note that this last proposal on treaties is already affirmed in the 15th preambular paragraph in the UN declaration.

Finally, I want to hold up and acknowledge Member of Parliament Romeo Saganash for his long-standing commitment both to the declaration and to ensuring federal legislation is brought forward.

I also wish to acknowledge first nations leadership and advocates over the past three decades, who have helped to bring us to this point: Grand Chief Willie Littlechild, Mr. Kenneth Deer, and Grand Chief Ed John. They're just a few of the many who have worked for decades to advance the declaration.

Passing this bill and implementing the declaration will build a stronger country for us all. It will advance reconciliation between Canada and first nations, and it will help to close the socio-economic gaps in the quality of life between first nations and the rest of Canada.

This legislation is something that every member of the House should support. I want to read something for you very quickly. In a very historic address to the 72nd session of the UN General Assembly on September 21, Prime Minister Justin Trudeau acknowledged the failure of Canada to fully respect the rights of indigenous peoples, and acknowledged that the UN declaration is not merely an aspirational document. He said:

We now have before us an opportunity to deliver true, meaningful, and lasting reconciliation between Canada and First Nations, the Métis Nation, and Inuit peoples.

And as we embark upon that process of reconciliation, we are guided by the minimum standards adopted here, in this chamber, ten years ago this month.

I know that Canada has a complicated history with the United Nations Declaration on the Rights of Indigenous Peoples.

We actively campaigned and voted against it, then endorsed it in the most half-hearted way possible, calling it an “aspirational document.”

The Declaration is not an aspirational document. It means much more than that to the Indigenous Peoples and others who worked so hard, for so long, to bring the Declaration to life.

In the words of Canada's Truth and Reconciliation Commission, the Declaration provides “the necessary principles, norms, and standards for reconciliation to flourish in twenty-first-century Canada.”

That's not an aspiration. That's a way forward.

Now I'll take your questions. Thanks.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

We'll start with MP Anandasangaree.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, Madam Chair. I'll be sharing my time with MP Amos.

Grand Chief and panel, welcome back to the committee.

I'd like to start with respect to an overall framework for the implementation of UNDRIP. Is Bill C-262 as a stand-alone enough? Or do we need other measures in order for us to fully implement the provisions of UNDRIP?

[National Chief Perry Bellegarde]

It's a good question, MP Gary. I think we've said that it's a start, a beginning. At least adopt this. Going forward, you can build upon it. That's the simplest and shortest answer I can give. It's a good start.

We know from the February 14th words of the Prime Minister that the rights and reconciliation framework is going to be worked upon, but this is something that's here now, so you can use that and build upon Bill C-262 going forward.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

What other elements would be important in this? You mentioned the recognition of rights framework that was introduced by the Prime Minister. Are there other elements that we need in order to be able to fully implement UNDRIP?

[National Chief Perry Bellegarde]

Yes, there are many things that can be worked on, but I don't have the exhaustive list in front of me. I'll have to check with my legislative drafters to make sure that I read it right. There are a lot of things that can be done.

When you start thinking about how you can implement the UN Declaration on the Rights of Indigenous Peoples, you need to have the national action plan. You can look at legislation. As well, you can look at putting in requests to the provinces and the territories to also pass legislation. There's a whole framework that can be dealt with, no question.

As well, there is building upon the UN declaration, but we also have in place section 35 of Canada's Constitution. We always that say we don't want to wait. I mean, we know that it's a full box of rights, which includes the inherent right to self-government and the inherent right to self-determination. We don't want to have to wait 25 years again—i.e., the Tsilhqot'in case—before those rights are recognized. Also, we don't want to go down that legal road unnecessarily. It's a waste of time, energy, and money. We have some things to build upon, no question.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

You've acknowledged the work of our colleague Romeo Saganash. Can you advise us in terms of consultation in developing this legislation? Did the AFN and your members play an integral role in developing Bill C-262?

[National Chief Perry Bellegarde]

Not directly, but Romeo had an extensive consultation process across Canada on his own. He's been to numerous tribal councils and PTOs, and there have been resolutions of support passed. We didn't have to do anything. He did all the work.

However, we did discuss and pass it in our AFN chiefs assembly as well, so there is a clear indication of levels of support from leadership across Canada for Bill C-262.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

I have a final question. You've discussed the issue of FPIC. That's come up on numerous occasions, and of course the issue of a veto has come up. You're quite clear in terms of where you stand on this.

Should Canadians be worried? Should people who for a number of years now have said that UNDRIP essentially offers a veto be worried in terms of moving forward? What do you have to say to them in order to put this to rest once and for all?

[National Chief Perry Bellegarde]

I would say to the people who have concerns over free, prior, and informed consent that there's no need to worry. Nobody is going anywhere in this country. Already, the right to self-determination has been recognized in previous covenants that have been adopted by this country and nation-state.

The two I'm referring to are the covenant on economic, social and cultural rights and the covenant on civil and political rights. All reference the right to self-determination, which has always been the right to say yes and the right to say no. I would say to people and to federal governments, provincial governments, and private industry that it's all about working together, creating that space for dialogue and making sure that before you try to build anything, you build a respectful relationship with indigenous peoples. If that can happen, you're going to create greater economic stability and economic certainty in all the provinces and territories once it happens. That's what I would say.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, Grand Chief. I yield the rest of my time to MP Amos.

[The Chair, Liberal, MaryAnn Mihychuk]

You have about two and a half minutes.

[William Amos, Liberal, Pontiac, QC]

Thank you, National Chief Bellegarde. It's really wonderful to have you here. Thank you for your testimony.

I have two very quick questions.

Number one, I represent a number of Algonquin constituents in the Pontiac region, as you know. Both for my indigenous constituents and for my non-indigenous constituents, what change could they expect in the years following the enactment of a bill such as the one that's being proposed? Concretely, what would they see and what could they expect as outcomes?

[National Chief Perry Bellegarde]

I would hope that they would see a gap being closed, the gap that exists between indigenous peoples and non-indigenous peoples in Canada, because you're going to create economic certainty and economic stability, and you're also going to create greater involvement by indigenous peoples in the economy, with a balancing of the environment and the economy with our full involvement and inclusion.

The gap that I continue to talk about and needs to be addressed and closed is the “sixth versus sixty-third” gap. According to the United Nations human development index on quality of life, Canada is rated sixth, but when you apply the same indices to indigenous peoples, first nations people, then we're sixty-third. That's sixth versus sixty-third.

For the Algonquin people and the non-indigenous people in your riding, you can say to them that once Bill C-262 is adopted, and once the UN Declaration on the Rights of Indigenous Peoples is fully embraced, endorsed, adopted, recognized, and implemented, you will see a greater involvement of indigenous peoples in the economy. You'll see greater participation by and success rates for young first nations men and women who are graduating from high school, because proper education will be in place. This gap will start to close.

That's the really meaningful outcome and output of the adoption of Bill C-262 and the UN declaration. It really truly is a road map to reconciliation. I've always said that in this country nobody is going anywhere, so we have to find ways, roll up our sleeves, do the tough work of dialogue, and find that common ground. That's what I'd say to them.

[William Amos, Liberal, Pontiac, QC]

Thank you. Do I have time for a very brief follow-up?

[The Chair, Liberal, MaryAnn Mihychuk]

No. I'm sorry. We're moving on to MP Cathy McLeod.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you for coming here today. I'm going to do a bit of a preamble and then leave time for you to share your thoughts.

It is of course no secret that we do have a few concerns in terms of what this bill means. I do want to note that we have asked the justice department for a definition of consent. I don't believe we've received it. If we could ask the justice department again for that definition, I would appreciate it.

I'm not sure that we aren't going to end up in more court cases rather than less. I really do believe that.

For example, I think a natural resources project that's a mining project is pretty straightforward. Any company that wants to do a mine knows full well that they have to have full engagement from the very beginning with the community where they want to create this mine, whether it's for Ajax or Prosperity. I think the message is pretty clear.

As an example, I watched Kinder Morgan spend years and years.... Of course, the fact that they have 51 agreements speaks to the work done by both the federal government and those 51 communities. Mr. Saganash indicated that free, prior, and informed consent had to include everyone, so what we would have, as I see it, is a gridlock, a deadlock, that we don't have with the current framework.

For my other example, I will use the Liberals' marijuana legislation, where I would suggest that they didn't hold true to any kind of even an attempt to have good conversation and get consent around that. The law is of general application. Who do you get consent from? How do you move forward? Right now, the federal government is arguing in court that moving towards free, prior, and informed consent would fetter the ability of the federal government to make laws around general application.

In a nutshell, I think those are some of the areas that certainly we are very concerned about. To date, the testimony has not alleviated my concerns.

[National Chief Perry Bellegarde]

Those were good comments. I totally respect the comments of MP Cathy.

The comments I'll make have two or three points.

Having an impact benefit agreement doesn't necessarily mean that you support the project. You can have it signed, but that doesn't say, “Hey, we totally endorse and support it.” Some feel that it's going to happen anyway, so they say, “Let's see what we can get out of it.” But they don't really like it. To me, that's kind of a good...but it's also a misindication of support for any particular project. I think each project would have to be assessed on its own merits, looking at the facts and the law in each instance, point by point and project by project.

You mentioned Kinder Morgan. Again, you have those 50 plus first nations that have signed IBAs, and then you also have the Tsleil-Waututh Nation that says no. Why are they saying no? It's because they're impacted. Has anybody asked them why they are so steadfastly opposed to it? It's because they're going to be most affected by it. They're right at the end of the pipeline. As you can see, you have to attest and look at it case by case. Some first nations are going to be greater affected than others. That's just one example.

We support the right to self-determination for first nations people, which is the right to say yes and the right to say no. The rights and titleholders have that right, not the AFN, but the rights and titleholders. We always support those who say yes and those who say no.

I see your point, but—

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

Currently within the legal framework of Canada and the jurisprudence, I would suspect that the courts will uphold the federal government's ultimately making that final decision in what is the best balance for all Canadians.

With regard to free, prior, and informed consent, if you follow Mr. aganash's bill through to its natural end, free, prior, and informed consent should be imbedded. It should be absolutely.... The courts very conceivably will be doing different interpretations.

[National Chief Perry Bellegarde]

I would say.... I didn't finish my three points, Cathy.

[Cathy McLeod, Conservative, Kamloops—Thompson—Cariboo, BC]

I'm sorry.

[National Chief Perry Bellegarde]

The other point I was going to make is in regard to the IBAs. Under the Kinder Morgan one, the project was approved under the old NEB process, and that's a flawed process. First nations' concerns weren't addressed. If you have a flawed process, you're going to get poor results. That's an example. You welcome the updating of the whole regulatory review process. It has to be updated. Again, if rights had been respected initially, you wouldn't be at this point. The whole point is to get out and build those relationships sooner rather than later in order to create that economic certainty. That's on that one point.

You mentioned the marijuana legislation as well. Even on that one, 75% of the excise tax goes to the provinces now and 25% to the feds. Well, first nations governments are going to be impacted by that. Where were we in all of this dialogue and mix as well? That's another issue. That's something else.

FPIC is preceded by “duty to consult and accommodate”. That's there, so we always say that we have to go beyond the duty to consult and accommodate. It's the crowns have the obligation to make sure that those processes in the duty to consult and accommodate are in place. It's the crowns: the federal crowns, the federal government, and the provincial governments. We have to be clear on that.

Section 88 of the Indian Act is about “laws of general application”. Why do the provinces always...? Here's my push for first nations jurisdiction, and I've always said this publicly: if we don't want federal or provincial laws to apply, then we create our own laws. We occupy the field and exert our jurisdiction, whether that be child welfare, education, health, matrimonial real property, or whatever the case may be. We as first nations, if we're going to be truly recognized as having the right to self-determination, as being here, then we exercise and occupy the field. That will take care of section 88 and the laws of general application because our laws will apply. That's where we need to keep going.

I think that once that's respected we're going to create a better Canada. That's what I believe. For this point on FPIC and duty to consult and accommodate, the whole point is to get the dialogue started sooner rather than later. Don't come in after the fact. If you come in after the fact, you're going to cause fights.