Indigenous and Northern Affairs Committee on April 17th, 2018

[The Chair, Liberal, MaryAnn Mihychuk]

This is the meeting of the INAN committee on a very serious issue, one that will move Canada forward in terms of reconciliation in dealing with historic wrongs. I'm very pleased to have you here.

I'll start by recognizing that we are on the unceded territory of the Algonquin people, as a reminder of the importance of that process as not only being honorary but actually reminding all Canadians of our history and the fact that we have a lot of unfinished business. This is a very timely and important discussion and we're very anxious to hear from you, pursuant to the order of reference of Wednesday, February 7, 2018, on 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.

You're here to present to us and our format is that you have 10 minutes for each presentation. After that, we'll go into a series of questions and answers from the MPs.

Paul, are you going to begin? Then I have Dwight after that.

Welcome.

[Paul Chartrand, As an Individual]

Thank you, Madam Chair.

In light of the nature of the subject, I should say a few words about me and my background. I'm a Michif person from Manitoba. I'm one of 12 children of a Métis trapper, fisherman, and carpenter. I was born in 1943. I've seen life in very different circumstances from what we live today. I am a retired professor of law, a practising lawyer, and I spent some 28 years, on and off, participating in deliberations in Geneva on the UN declaration.

I shall comment on three basic points today. First is the matter of interpreting the text of the declaration to apply it in Canada. I'm arguing against the formalistic approach. I will also argue the need for a rational and defensible federal recognition policy respecting the section 35 aboriginal peoples. Finally, I will suggest that the federal Royal Commission on Aboriginal Peoples, which reported in 1996, ought to be considered in designing the plan of action contemplated by Bill C-262. That was a commission, I must disclose, of which I was a member.

First, on interpretation of the text I begin by emphasizing the important statements in the preamble of the bill that treaty and aboriginal rights as well as human rights are underlying values and principles of the Constitution of Canada. Therefore, we know that no foreign ideas are being introduced here. Canada's initial hesitancy and refusal to adopt the declaration was a rather shameful retreat from what a friend and colleague described as Canada's international image: that of a boy scout. The image had been garnered by Canada's efforts internationally since the days of Lester Pearson, as you will know. It seems to me that the adoption of Bill C-262 would help to wash the mud off the boy scout's face.

Pardon me for reading some of these notes verbatim. It helps me not to yield to my propensity to act as a didactic twit, given my long career in universities.

Opposition to adoption of the declaration seems to lean, at least in the public eye, upon reasons that flow from a formalistic approach to its interpretation. The exegete must not be seduced by a close scrutiny of each word in a text. Let us keep in mind that the text of the declaration exists in six official and very different languages. The interpretation of the declaration requires throwing away the looking glass of the formalist approach, which examines each word or phrase in isolation. In each case, we must consider the relevance of all the various human rights standards evident in the declaration, as well as elsewhere in international law, and apply them to Canadian circumstances.

A realist approach to interpretation will seek to apply to each domestic situation engaging state-indigenous relations the principles and the values behind the declaration, infused as they must be with the values of the indigenous peoples to which the facts draw attention. The question is about how the human rights standards, viewed holistically, ought to apply to the facts of each case. The issue is not so much what the declaration says, but what it means.

Canada must begin to accept the existence of power and authority residing in various sources. I emphasize that the purpose of the declaration is to guide state-indigenous relationships. Consequently, after some time, after Canada has adopted the declaration and implemented Bill C-262, if we have focused upon the values and the purposes of the declaration, I believe that interpretative approach would allow us to say, “Well, we're getting along better now, aren't we?” Is that not the true object?

My second point is that Canada must adopt a defensible policy to recognize the aboriginal peoples, in section 35, and to perform its constitutional duty to make those rights effective.

Who are the aboriginal peoples? I have a book with that very title. Nobody on the indigenous side wanted to touch this question in Geneva. Some states were reluctant to accept the declaration without a definition. My point here is that adoption of the declaration will add little to the promotion of an understanding of the issues here, and it's a very vexed issue.

The most salient issues are reaction to the 1982 recognition of the rights of aboriginal peoples. Our problem lies in history, in Canada's traditional policy, which has been rooted in the Indian Act. Unilaterally, in a breach of treaties, this act purported to offer legal recognition to Indians. The problem is that the Indian is a ghost of the European imagination.

Canada's aboriginal peoples, the ones who have been here aboriginally or since the beginning, are the Mi'kmaq, the Tlingit, the Cree, notably the Haida, and so on. The descendants of some of these aboriginal peoples who have not been recognized in the act are trying to fit themselves into the category of section 35, aboriginal peoples.

The name that's been applied to these people historically has been non-status Indians. Their situation has been obscured by the large number of claims from self-identifying mixed-blood peoples across the country since the 1980s. As the courts have held, section 35 affirms rights that are based on historical state-indigenous relations of peoples, not upon personal antecedents. One of the points is that the consultations that have to occur under Bill C-262 must keep these points in mind.

My final point concerns the national action plan with consultations. A serious look should be given to the analyses and recommendations of the Royal Commission on Aboriginal Peoples. Even the recent Truth and Reconciliation Commission recommended a royal proclamation as a good symbolic start. The federal government itself reorganized its structures by splitting into two departments. I have a commentary in public media on that point.

A first ministers' conference is necessary, because the provinces must be engaged in order to make the Constitution and the treaties effective, and to make the Constitution legitimate. New institutions will have to be designed. I can't think of a more important one than the model of the lands and treaties tribunal. I really urge you to have a look at volume 2 of the RCAP's analysis, which leads to the recommendation of an aboriginal lands and treaties tribunal. The specific claims policy and its related policies really do not work, and they ought to be rejected.

I will yield to the time constraints, Madam Chair.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Mr. Newman, it's your turn. You have up to 10 minutes.

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

Good afternoon. It's an honour to speak with this committee as it studies Bill C-262. I'd also like to acknowledge the Algonquin people on whose territory this meeting occurs.

My name is Dwight Newman. I'm a professor of law and Canada research chair in indigenous rights in constitutional and international law at the University of Saskatchewan.

I come here today with full respect for the very noble aspirations reflected by Bill C-262 and the passion and lifelong advocacy efforts of the member who has introduced it, the support for the bill by many civil society organizations, and the profound importance of Canada working to implement the aspirations reflected by United Nations Declaration on the Rights of Indigenous Peoples.

However, I am going to say something different than some of the other witnesses. I do come to say that I think Bill C-262 as presently drafted is framed in ways that have the potential to cause enormous unforeseeable consequences. It has a range of highly unpredictable legal effects due to two things: elements of uncertainty on the international norms referenced, and legislative drafting issues in the bill itself.

In the next few minutes I'll try to introduce some of those, although I'd also refer you to my written brief for further reference, particularly on some of the legislative drafting issues.

I would suggest that the range of possible implications of this bill is very wide, from courts giving it no effect at all on through to the courts giving it massive, unexpected effects that could inadvertently cause governance gaps, for example, by the potential implied repeal of existing statutes, on through to legal effects that could depend in complicated ways on the order in which different bills currently under consideration in Parliament are passed.

I'll explain some of that momentarily, but my ultimate question is whether it wouldn't be better for Parliament to determine what, more precisely, it's trying to do and to enact a clear bill to do exactly what it's trying to do.

In my few minutes, I'll make three main points: one related to the substantive content of UNDRIP, one related to the drafting issues in the bill, and then a third one, quickly suggesting the need for further analysis by other committees.

First, the substantive content of UNDRIP is itself subject to more debates than often realized, and a statute drawing upon the declaration is no less subject to uncertainties that arise from these ongoing debates. To offer just one prominent example, a number of articles of UNDRIP refer to the concept of free, prior, and informed consent, or FPIC. Some of those articles of the declaration refer to a requirement to have FPIC before taking certain steps, and others refer to consulting and co-operating in order to seek FPIC. The first special rapporteur after the declaration was adopted, Professor James Anaya, attributed significance to that difference and suggested that a spectrum of different duties arose in relation to different articles.

In the years since, in general terms, in international law scholarship, three main interpretations have emerged in relation to the declaration on FPIC. There's an ongoing, growing literature, but I might mention Mauro Barelli's chapter in the new Oxford commentary on UNDRIP, released this year, as a particularly helpful piece in outlining some of those concepts.

One interpretation reads the text more strictly and says that in some circumstances, the declaration says it's enough to seek FPIC in good faith without necessarily obtaining it. I've suggested that this is the implicit position that Canada's 10 principles document, issued last summer, took somewhat slyly, as I put it in an op-ed. It's arguably that interpretation, though, that is most consistent with the French-language version of UNDRIP, and with one possible interpretation of the English-language version.

A second interpretation says the FPIC requirement is really about the type of process required and that it's possible to move away from talking about consent itself as long as one has the right type of consensus-oriented process. That interpretation fits with the approach of many practitioners who are trying to work with FPIC in practical ways.

A third interpretation sees FPIC as grounding rights analogous to vetos, and that interpretation is, and continues to be, urged by many indigenous advocates. A prominent Canadian example would be found in articulations by the scholar Pam Palmater.

In the context of Bill C-262, just which of these interpretations filters through from UNDRIP has drastically different legal consequences that matter. Not knowing that poses difficulties for everyone.

We've seen in the events of the past week around the Trans Mountain pipeline how legal uncertainty can affect the investment climate that can contribute to prosperity for both indigenous and non-indigenous Canadians, though obviously in the context of a project on which people have many different views.

My main point is that legal uncertainty doesn't help anyone, and this bill may draw Canadian law into new uncertainties coming from uncertainties around the interpretation of UNDRIP itself.

Second, the bill as presented has significant issues from a legislative drafting perspective, which I highlight at more length in my written submission, but I'll mention some of those briefly.

One, it uses a number of legal terms that have either no, or almost no, prior use in Canadian statutes, meaning that one's essentially gambling on how the courts might interpret those terms. That might render the whole bill merely symbolic at one end or it might lead to it having very significant effects, or anything in between.

Two, the different sections of the bill are subject to some tensions as to whether it requires immediate implementation, whether it requires implementation over a multi-decade period, or something in between. That could undermine clarity of meaning.

Three, the English and French versions of the bill may not line up in terms of their language. The French versions of terms from the English side are not the same as the French terms used for the same English terms in other pieces of legislation, again suggesting that there may be more drafting issues to be carefully considered.

Four, the way in which the bill may interact with other statutes or bills gives rise to some real complexities. I go through that in what is probably painful legal detail in the brief, but I suggest that if the courts were to give the bill substantial meaning, it could lead to the implied repeal of other statutes, or provisions of other statutes—maybe the Indian Act—overnight, in a manner that could lead to governance gaps and legal vacuums. That's not the way to abolish the Indian Act, which should of course be done but needs to be done in a clear way that doesn't generate problems in the process for indigenous communities who use its governance structures.

I also raise the prospect that because of the underlying legal principles on dealing with multiple statutes enacted by Parliament, the meanings of Bill C-68, Bill C-69, and Bill C-262, if all passed, could end up being significantly different, depending on the order in which they're passed. With respect, there needs to be a coherent plan and clearer legislative drafting to address some of these issues.

Third, just very briefly, Bill C-262 has the potential and indeed the aim to affect a huge range of areas of Canadian law. Is this committee alone well placed to consider the effects on Canada's intellectual property regime of something like clause 3 in the bill? Is this committee alone well placed to consider the implications on various religious freedom contexts arising out of UNDRIP?

My written brief lists some of the very wide areas of policy-making that could be impacted if the bill is adopted, and indeed the bill hopes to affect. With respect, it's analogous to an omnibus bill, which I would suggest could warrant attention from almost every other committee of Parliament. I would urge that there be some kind of further consideration of those effects.

In conclusion, my overall view is that Bill C-262 warrants further study and careful analysis. The legislative drafting does not meet all of the standards that we would hope for in the best legislative drafting of a bill on behalf of indigenous peoples to support a better relationship between indigenous peoples and other Canadians. There are a range of highly unpredictable effects across almost every area of government policy, and those deserve study. There could well be amendments that could improve the bill, but they need to be developed with legislative drafting expertise of the sort that the justice department has but presumably hasn't provided enough of in support of this committee at this point.

The government has committed its support, but I would hope that we would see further tangible results in terms of the details of the bill, and that there would be that legislative drafting support so that the government's commitments to implementing UNDRIP are realized in the way that best fulfills those.

I urge that the committee call for more support for its work in examining this bill and not rest with brief statements that have been offered by the justice officials who have appeared before it thus far.

Thank you for your attention, and I'm happy to discuss matters further in questions.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you very much.

We're going to open the question period—

Mr. Richardson.

[Miles Richardson, Director, National Consortium for Indigenous Economic Development]

I was going to talk anyway.

[The Chair, Liberal, MaryAnn Mihychuk]

I don't blame you. You came all this way.

[Miles Richardson]

I am Miles Richardson. I'm from the Haida Nation out on the west coast. I'm very pleased to be here today. I also acknowledge the Algonquin people, the Algonquin nation, on whose territory we're gathered today for this very important discussion.

I want to thank Romeo Saganash and all parliamentarians for this bill, which I believe is an important signpost on the road to righting the relationship between Canada as a nation-state and the indigenous people who were the first peoples of this place we all call home and we all call Canada today. In my view, it's high time that we did this properly.

We've been to this fork in the road before, and the fork in the road is very simple. There are two routes forward. Continue on the road we're on, the colonial road, the one of denial and assimilation through the instrument of the Indian Act and all those actions that the Truth and Reconciliation Commission has confirmed for all of us is the wrong path. We could continue on that path, I suppose. The choice of the other path is exactly the right path, in my view, which the Government of Canada has stated is the chosen path for Canada, and that's establishing a proper nation-to-nation relationship between each indigenous people and Canada as a state.

Bill C-262 is a signpost for that path which, in my view, is the correct path. In 1763, we began to face the same choice. In those days, first nations in this part of the country had a bit more leverage, I'd say, on Canada. You all know the story. Britain, in right of the crown, brought to Niagara Falls its commitment on a relationship with indigenous peoples, a relationship in which the crown committed that first nations would not be disrupted in our powers, in our authorities, in our interests, or in our jurisdictions without consent through a treaty with the crown itself.

That was the commitment that Britain brought to Niagara Falls. The 27 tribes, nations, on the east coast who then met with them brought their commitments, the Two Row Wampum and the Covenant Chain. The Haudenosaunee and others brought commitments that still would pass, I would say, the test of acceptance by first nations today. I've talked to my people. I've led a lot of our negotiations and our position in terms of being respected as a nation, and working with the constitutional framework of Canada is very much in line with the Two Row Wampum and those commitments that were made in Niagara Falls. I think those were honourable commitments that didn't last long.

Last year we celebrated 150 years of Canada, and very soon, as treaties 1 to 11 began being negotiated, Canada forgot those commitments and devolved to one of the first pieces of legislation of that Parliament, the Indian Act, and the policy of the denial of our humanity and of our fundamental human rights as indigenous people began. We get to the point we are today.

I would really appeal to all of you as parliamentarians to work together as the Government of Canada to implement this proper nation-to-nation relationship. Bill C-262 is a beginning, as my friend says. It can't be the end. This has to be a whole-of-government approach. There are going to be many discussions about the legislative implications and the relationship implications. The longer we put it off, the more uncertainty is going to breed uncertainty. We're going to face many more situations like we are on the west coast today, and that's just one of them. That's so predictable in this current climate.

As we go down this path of establishing a proper nation-to-nation relationship, we should be guided by the Truth and Reconciliation Commission's calls to action 43, 44, and 45, which you can all read.

Action 43 asks us to use UNDRIP and free, prior, and informed consent as the framework for reconciliation. That's a wise recommendation. When we look at nation-to-nation relationships, we shouldn't be turned off by the notion of consent. We're talking about respecting each other on an equal level, and I know my people, the Haida people, expect nothing less. We come to every table with that expectation and with the acceptance, as the wise judge said in the Delgamuukw case, I believe—in the Supreme Court of Canada anyway—that we're all here to stay and that we can make this constitutional framework, including section 35, which brings our indigenous law alongside the framework of Canadian law.

We can make this work, but it's going to take commitment. Because of all the nuances that we have to work through, the one thing it's going to take is political will. If you look at the courts in the last 25 years, there's a pretty impressive winning streak of first nations asserting our title, basically legitimizing the position our people have always taken, since contact.

What has changed? Very little. Do you know why? It's because Parliament and the legislatures have not done their jobs. Those laws amount to a hill of beans. You've been put in place as parliamentarians. Those laws, those decisions of the courts amount to a hill of beans if you don't enact them. Bill C-262 is another opportunity to do the right thing.

I was going to tell you a story about Sparrow and how that... I was on the B.C. claims task force, designing a treaty-making process for B.C. in the early nineties, while RCAP was holding its hearings. We had a notion in there. We had mutual recognition on a government-to-government basis, but as soon as first nations were recognized, we had to have interim measures to balance all the federal and provincial statutes that had never contemplated aboriginal title or right.

The Minister of Fisheries flew out to B.C. and met with the first nations. I remember that he said something like, “Look, I've got a problem. Six months ago, the Supreme Court of Canada handed down its decision in Sparrow. Indigenous people have fishing rights, and I need to do something about that. I want an interim measure.”

We started negotiating an interim measure, which turned into the aboriginal fisheries policy, which started out with really good intentions and very soon degenerated into the same old “we make the rules here in Ottawa; you stand up and get your portion”.

As we go forward again, Parliament failed a major opportunity and still the courts.... There was the Heiltsuk and the herring spawn decision in 1996, which was a pure victory. They have the right to sell. The Ahousaht decision a few years ago upheld their right to sell all the fish in their territories, and still they're sitting on the beach watching everybody else do it.

Now we see the Kinder Morgan pipeline being pushed through British Columbia. We're all going to learn something from this. You mark my words. We're going to learn a lot of lessons from this situation.

It's unfortunate. In the face of commitments to a proper nation-to-nation relationship and this relationship being the most important, the pronouncements of the last few days that “at all costs this pipeline's going through” to me are like a dog whistle to industry and to those who have kept marginalizing indigenous people all these years, signalling that indigenous, aboriginal rights still mean nothing in this country. If anything, they mean, “You indigenous people can have the scraps after we're done.” That's just not the way to move forward.

Bill C-262 is a signpost to the proper way. It's going to take a lot of effort, it's going to take a lot of commitment on all of our parts, but it's the right way to go.

I'm really interested in hearing Val Napoleon's presentation later, after we're done, on indigenous law. If we can't do this through negotiations, this is how indigenous people are going to have to achieve our justice: through implementing our laws and figuring it out as the dust settles, I imagine.

Thank you, Madam Chair. I look forward to any further discussion.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you very much.

We now move on to questioning, and it's MP Will Amos who will start us off.

[William Amos, Liberal, Pontiac, QC]

Thank you to our esteemed witnesses. It's really fabulous to have this panel before us.

I'm going to start by asking a question similar to Mr. Newman's and Mr. Richardson's, but from the flip side of the same coin. I'll ask you both to answer, one after the other, if you would.

Mr. Newman, I've read your brief. I appreciate your pointing to potential uncertainties, a series of prospective legal risks that you see may be associated with the language that has been advanced in Bill C-262. Clearly the members on this side, as well as member Saganash and our government, are very supportive of this bill, but I think that anyone who's looking at this clear-sightedly recognizes that there is going to have to be both governmental treatment as well as judicial treatment of whatever bill is enacted.

Looking at this as it is presently drafted, in a reconciliatory spirit what would you be recommending—and I invite you to make further written submissions—if you see a path forward? What mechanisms could be put in place in the context of this legislation to mitigate some of the uncertainties and to enable better interaction between existing constitutional protections for indigenous peoples and their rights, as well as through this legislation?

To Mr. Richardson I put the same question, but the other way around. I understand that there are people who are reticent, who are uncertain when they see this legislation. They don't know where it's going to take us, but as you said, we've seen the decisions one after the other, and your nation has been a leader in this regard for many years. How can greater certainty and clarity be provided to those who are concerned about writing a law into the unknown, as it might be expressed?

I feel as though I'm asking you to reconcile your positions right here and now.

[Dr. Dwight Newman]

I don't know whether it's difficult to reconcile our positions or not, because honestly, I don't think I disagreed with anything Mr. Richardson said. I have, however, a set of issues with respect to the particular text of the bill and the way in which it's cast.

You're asking a good question about how, specifically, it could improve in the spirit of reconciliation. The first thing I'd say is that this is not something I can easily answer, and there are two reasons for that.

One is that I think Parliament needs to decide what exactly it's trying to achieve through the bill. Is it more important to send various questions to the courts, as clause 3 of the bill would seem to do, or is it more important that Parliament face up to those questions? I think there's a tension between those two things. As you say, there will be a governmental treatment and a judicial treatment, but it's important to reflect on what judicial treatment will result from what choice is made there.

Mr. Saganash had a prior bill, Bill C-641 in a previous Parliament, that didn't have all of the same clauses as this bill, if I understand it correctly. The question would be whether there are issues that arise from having all of these same clauses that are in this bill, or is this exactly what Parliament's trying to achieve despite the uncertainties to which it may give rise?

The second reason I'm not the right one to answer that question in full is that some of the questions I raised are questions of legal interpretation, something I have to do quite regularly but that bear on legislative drafting, in which I'm not an expert. That is a very specialized expertise. There are legislative drafting experts in the justice department, and I think it's important to employ that expertise in getting the drafting questions just right.

[Miles Richardson]

Before we get down into the legal weeds and all the nuances of who does what and according to what guidelines, we need to set the context at the higher level, the relationship level. TRC's recommendation 45 to jointly develop a modern version of the royal proclamation is the right starting point. We need to commit as a nation, as Canada, and as first nations, to the nation-to-nation relationship. That is a tough business. People pick up arms all over the world before they do that. I'm not pretending it's easy but that's where we have to start, and TRC points us directly to that.

We have the Royal Proclamation of 1763. We need to do that in a modern sense, and we need to do it in a way that the Government of Canada, the Parliament of Canada, can stand up and say, “The road we've been on is the wrong one, as the TRC has reminded us. This is the way forward, and we as a nation are committed to it.” That's what a modern royal commission says, and to articulate that policy and to do it in agreement with first nations so that these discussions are not just happening on Parliament Hill. Those discussions need to be happening in every town, at every kitchen table, in family discussions across this country. That's what we didn't do the last time, in the late 1700s. We need to. We are capable of having this discussion.

Remember, each first nation's going to be a crucial part of implementing this. I don't hold Haida rights individually. I can't exercise them with me or my family or even my community. Our nation is the legitimate rights and title holder, and those are collective decisions that need effective governance to exercise them.

We need to create space and have them build up, again in a modern context. As RCAP pointed out, there are about 60 indigenous nations in today's world. That modern royal proclamation would be the beginning. I don't think every little issue has to go to court, but if every little issue has to go to court we'll be at this forever.

We can set up joint tribunals to make sure that in getting agreement, in reaching consent, we have all the modern dispute resolution tools at our disposal to achieve that. It's a big task. It's a necessary task.

[The Chair, Liberal, MaryAnn Mihychuk]

I thought you were very concise.

We're moving on to MP Cathy McLeod.

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

Thank you.

I certainly appreciate all the testimony we've had today. It doesn't matter your position on Bill C-262, I think the spirit of what we need to do lies with all parties in Parliament.

We're talking about Bill C-262, an important part of that path, or is there ultimately a better route forward in what we do?

In my opening speech on this, I indicated I was concerned that it wasn't government legislation because it didn't have drafters from the justice department. Mr. Newman, because it is a signatory commitment of the government, first of all, should it have been appropriated as government legislation?

I like the way you talk about the different interpretations of consent. You had it laid out into three different interpretations. Truly, I believe we should have a common understanding, or indigenous peoples should come to some kind of common understanding about that language, or is that going to have to happen after?

Again, Mr. Newman, could you speak to those issues? I have concerns about the interpretations. I think this should be government legislation.

[Dr. Dwight Newman]

On the first question, I don't know if I have a view on that or not. A private member brought forth the bill. If the government chooses to support it, I don't know the implications for the parliamentary process of a government bill versus a private member's bill. What I would say is that if the government is supporting this bill, I would hope that it would invest government resources in ensuring that the drafting is the best that it can be and would support the private member— if it is a private member's bill— in ensuring that the drafting is the best that it can be.

In terms of the second question, I think it's unrealistic to say we must have indigenous peoples or every indigenous scholar agree on what consent is. That's not going to happen quickly.

The question I would pose, then, is whether the legislation should say something specific about what version of consent the government is adopting, rather than refer to an instrument where there's an ongoing debate over what that concept means. That's where I think there are some complicated questions on implementing UNDRIP and whether the best way is to simply attach it to a provision that says it now has application in Canadian law.

Lawyers have to then advise people on what that means, when the language hasn't been used before in any statute. They have to advise on what that means for various governmental decisions, about which clients are trying to make predictions. I think that's a very challenging prospect. There would be real advantages for everyone in terms of clarity to say more things specifically in the bill about what Parliament is adhering to.

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

I think you again flagged some things that I have addressed, whether it's Bill C-45, C-68, or C-69. This bill has significant implications for all those other three bills and that is something that I don't think we've perhaps looked at or addressed very well.

I do want to talk about Kinder Morgan because I think it's a pretty good example of some of the challenges that we have. I think a mining project is somewhat easy in terms of free, prior, and informed consent, identifying whose territory it's in and ensuring that the rights and titles are respected and acknowledged and the projects move forward.

You talked about concerns from your community, Mr. Richardson. I have chiefs who run down that pipeline and who are saying, “We took it to our community. They voted 85% for it. One-third of the pipeline is going through our territory.” We have communities along the whole pipeline route, and it's more than just the benefit agreements. They've taken it to their communities and 85% is not 100%, but it is significant.

What we have is rather like Canadians in general. We have a complexity of very strong feelings on this particular issue. How will government ever, if we have something like Bill C-262, align all those important considerations? Again, I look at the communities, the Shuswap people who are predominantly in one area.

It's difficult. It's complicated. I know we were grappling with it until midnight last night. It's important and I worry about where we're going to end up in terms of making sure we respect rights while still being able to move forward with things that are important for everyone who lives in this country.

Maybe we'll hear from Mr. Newman and then Mr. Richardson.

[Dr. Dwight Newman]

You can go first.

[Miles Richardson]

I'm not being facetious here. Read RCAP. All the answers to those questions you asked are in there. That's over 20-something years old.

What it means is.... It starts with recognition. That's part of the bill. That's part of the nation-to-nation relationship and it's recognition of nationhood. In terms of indigenous people, that means being organized as the proper rights and title holder or treaty participants. That's really important.

What's going on in B.C. right now is the company and the federal and provincial governments are going to Indian bands and those don't always correlate with the proper rights and title holders; if you want to buy a bridge in San Francisco, I have a good deal for you.

You can see that I'm trying to create a picture of what's going on there. Recognition is where it has to begin and that is not happening right now.

[The Chair, Liberal, MaryAnn Mihychuk]

The questioning now moves to MP Romeo Saganash.

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

Thank you, Madam Chair.

Thank you to all the witnesses today. I truly appreciate your contribution to our work on Bill C-262, as well as your comments. I think they're all helpful. I'm going to ask the same question to all three of you.

We've lived in a constitutional supremacy in this country since 1982. The rights in our Constitution—both in part I, the Charter of Rights and Freedoms, and in part II, the section 35 rights—the Supreme Court has recently said are sister provisions that serve to limit the powers of federal and provincial governments. That's the state in which we are today.

I have a very simple question for all three of you. Do you agree that the rights contained in the UN Declaration on the Rights of Indigenous Peoples are human rights? That's how they're viewed internationally.

Second, subclause 2(2) says that this legislation does not have the effect of delaying the application of the UN declaration in this country. Clause 3 talks about the UN declaration as being an “international human rights instrument with application in Canadian law.” These rights are said to be inherent, so they do exist because indigenous people exist in this country.

It's the same question to all three of you. I only have seven minutes, one crack at this, so that's why I'm asking the same question to all three of you.

[Paul Chartrand]

Pardon my very bad hearing, but I'll reply to the question that I heard about whether we believe that the rights in the declaration are in the nature of human rights.

My answer is that they are part of the international human rights regime. Therefore, in that sense, absolutely, they are human rights.

If you're asking a different question, if you're asking about how the philosophy articulates the character of those rights, then the question is an open question. I'm not aware of any philosophical discussion that specifies a rationale for the existence of group rights, but they do exist. They're in the political arena, and the entire world has been involved in the wonderful process in Geneva, the wonderful achievement of state representatives and indigenous peoples representatives to come up with this declaration, which is definitely a part of the human rights system.

[Dr. Dwight Newman]

I would follow the interpretation that's offered by Professor James Anaya to the effect that UNDRIP is essentially a normative statement at the international level of how human rights apply to the circumstances of indigenous peoples around the world. I don't say that to dodge the question; that's how I would answer the question.

What I would say is that it is not necessarily a document that works as a statute in every country around the world in the same way. As a result, I'm not sure that adopting it and saying in clause 3 that it has “application in Canadian law”—something you've just referenced—is going to achieve the rights aims of the declaration itself in the most desirable way.

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

Are they human rights, though?

[Dr. Dwight Newman]

That's the first answer that I gave. Indigenous rights are human rights, and UNDRIP is an important international normative statement on how human rights apply to the circumstances—

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

But you're suggesting that with regard to these human rights in particular, we should wait some more time before we apply them, and I totally disagree with that.

Miles?