Indigenous and Northern Affairs Committee on April 17th, 2018

[Miles Richardson]

Of course they are fundamental human rights. I consider myself a human being. I am a member, I am a citizen of an ancient nation. I am the living generation of an ancient nation that has thrived very efficiently in my homelands for hundreds of generations, for thousands of years. Since beyond the memory of man we've existed as organized societies, the definition of a people under international law, and there are many examples across this country. As RCAP said, there are around 60 indigenous peoples defined by common culture, common beliefs, common languages, and common political and social institutions, so it's very much a fundamental human right.

I think, as it applies to Canadian law, we have to start with political relationship building and make sure that those laws accommodate it. The reality of those as fundamental human rights is right at this moment. I'm not going to exist, to suddenly rise to fruition when Canada recognizes me. No, I exist right now. I'm a capable human being.

That's our challenge, and we have to bridge where we are now with where we want to get. In the B.C. treaty process we call that “interim measures”, but I think you're very clear on that, Romeo.

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

I have just a quick question on the concept of uncertainty.

Miles and Paul, you guys were both around during the constitutional years, and I think if you compare the concept of aboriginal rights, nobody knew exactly what the content was in those days. Here is a bill proposing to clarify all of the rights that we have inherently as indigenous people.

Which of the two pieces creates more uncertainty, aboriginal rights in general, the general concept, or UNDRIP?

[The Chair, Liberal, MaryAnn Mihychuk]

One word answers, very quickly....

[Miles Richardson]

UNDRIP creates more certainty, definitely.

[Paul Chartrand]

My point would be that these are very complex and important questions. We must live comfortably with uncertainty. There are huge philosophical and cultural debates here, so there is uncertainty. Those who put too much weight on the idea of the looking-glass interpretive approach, I think, are perhaps not as comfortable with uncertainty as they might be.

[The Chair, Liberal, MaryAnn Mihychuk]

Okay.

I've had a passionate plea. MP Bossio wishes to ask a question. He promises it will be very short, because we have only 30 seconds.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

What I've been able to surmise.... Actually, this has been a perfect panel of taking the legalistic side of society and the nation-to-nation side of the argument.

Really, I guess I'd say that this is a black-letter law type of argument versus the political will side of the argument, a legalistically defined approach versus a nation-to-nation relationship defined approach, and Bill C-262 forces us to deal with this head on.

Would you agree with that?

[Miles Richardson]

I would agree, and I think getting down into the legal weeds before we establish the relationship and our intentions in those relationships is a recipe for trouble. It's a recipe for chasing our tails forever, and that's part of the aboriginal rights conundrum that Romeo referred to. We have to lead this by really clear, strong, and unwavering political commitment.

Even with that, as Paul says, it's not going to achieve perfect certainty, but maybe it will achieve sufficient certainty.

I'll tell you, I've been a part of agreements. Twenty-something years ago we made the first nation-to-nation agreement between the Haida Nation and Canada, which you came—

I'm just getting rolling, Madam Chair.

[The Chair, Liberal, MaryAnn Mihychuk]

I'm going to have to cut you guys off.

[Dr. Dwight Newman]

May I answer?

I'd just like to say that I think that choice should be avoided. I don't think the choice needs to be between making a firm commitment and the legalistic questions. A firm commitment can be offered and a sincere commitment could be offered without that being in the form of a statute in exactly this form, but further statutory measures should follow from commitment, and more specific statutory commitments.

[The Chair, Liberal, MaryAnn Mihychuk]

I knew giving it to Mike was a problem.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

I was quick.

[The Chair, Liberal, MaryAnn Mihychuk]

We're going to suspend for a couple of minutes, and I invite the new presenters to come forward.

[The Chair, Liberal, MaryAnn Mihychuk]

All right, let's get started. We don't want to cut the time for the presenters.

I'm going to ask members to have a look at the budget very quickly. Do we want to reimburse our guests? If so, I need a mover.

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

I so move.

[The Chair, Liberal, MaryAnn Mihychuk]

It is moved by MP Vandal and seconded by MP Saganash.

(Motion agreed to)

Thank you.

All right, we'll move on to business.

I want to thank you for coming. We look forward to your presentations. We have a video presenter who has been watching the activities. We're all riled up, so look out. Each one of you will have up to 10 minutes, and then we'll get around to the question period.

If we're not going to amend anything, we're going to start with Ryan Lake, move to Val Napoleon, and conclude with Ken Coates.

Okay, Ryan, it's all yours.

[Ryan Lake, Partner, Maurice Law]

Thank you very much.

As I indicated earlier, I will circulate my opening statement afterwards.

I'm hear to speak about my perspective and experience as a lawyer advocating for the recognition and implementation of aboriginal and treaty rights across the country and to offer some comments about the substance of a framework that gives teeth to the principles enunciated in UNDRIP.

To start, I believe the government's efforts to conclude a framework with new legislation and policy that enshrines the implementation of rights as the basis for all relations between first nations and the federal government is a critical step forward. Equally critical will be the contributions of first nation governments and their citizens to the development of any framework.

As we know, the recognition and implementation of aboriginal and treaty rights is the centrepiece of reconciliation. Section 35 of the Constitution Act recognizes and affirms these rights, but the substance of these rights has been left flapping in the winds of the courts. Very little has been done by Canadian governments in collaboration with their first nations' counterparts to implement any unifying and purposive recognition of these rights.

This failure allows historical injustices to compound. The recognition and implementation of a rights framework may provide the necessary protections of indigenous rights and ensure the promotion and realization of reconciliation.

I've looked at the articles and I've identified some related systemic challenges that I think will be addressed by the framework and that would achieve or lead to the achievement of harmonizing the laws of Canada with UNDRIP. This is just to give us some practical examples. Article 26 details indigenous peoples' rights to their lands, the development of their lands, and state protection of these lands. Article 28 provides that indigenous people have the right to redress by means that can include restitution, or when this is not possible, a just, fair, and equitable compensation for the lands and resources.

These articles are relevant to the long, ongoing effort to resolve hundreds of specific claims across the country. I previously provided a paper to a different iteration of this panel, titled “Exploring Access to Justice through Canada's Specific Claims Process”. That paper reviews features of the specific claims process that have emerged over the last 40-plus years, features of dispute resolution that have been employed to reconcile the relationships between the parties arising from these centuries' old, unresolved claims. It provides a detailed analysis and commentary on the dispute resolution process as it is today.

The desired outcome is central to the issue of redress. This begins with an unabashed legislative promotion of reconciliation among first nations, the crown, and non-indigenous populations and the resolution of these historical injustices.

Obstacles that currently exist, which may be resolved through legislated harmony with articles of UNDRIP include, for example, the elimination of the specific claims cap, which would allow for a fair and equitable redress to spill on to the specialized tribunal for the Specific Claims Tribunal.

The $150-million cap that currently exists is too low in light of development in the case law. It means that a lot of straightforward, historical grievances involving unlawful takings of land and treaty land entitlement now fall outside of the benefits of the tribunal process. By restricting claimants under the policy and before the tribunal to $150 million, you are, in effect, obstructing access to justice for countless first nations whose claims are now forced to enter the judicial process, which is filled with other challenges.

This brings us to our next obstacle, which I think flies in the face of the UNDRIP articles. These are the technical defences that are universally used by the crown in the superior courts. As we know, until 1951, first nations weren't able to retain legal counsel. Today, in every single piece of litigation before the superior courts you will find the crown defending on the basis of limitation periods, which of course, in effect, extinguish aboriginal and treaty rights by virtue of their operation. Limitation statutes should be amended to address section 35 cases. Arguably, UNDRIP principles could be a road map to justifying that.

My simple recommendation in this regard is to amend the legislation either to recognize the way you have it in the tribunal process that those limitations have no effect, or to amend them in another way that allows for a reasonable time period for first nations to file their claims. The idea that statutory limitation periods enacted by federal and provincial governments can bar reports to the courts is contradictory to the guarantee and entrenchment of aboriginal and treaty rights in section 35.

I'm going to jump to article 37 of UNDRIP, “Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors”.

The natural resource transfer agreement executed in 1930 transferred to Saskatchewan and two other prairie provinces, I believe, all minerals, lands, and natural resources, subject to certain conditions. One such condition was for the province to provide unoccupied crown lands to fulfill any treaty land entitlement obligations that remained left over vis-à-vis the treaties or that still existed vis-à-vis the treaties.

In 1992, in one of these provinces, the provincial and federal governments and 25 first nations signed the Saskatchewan Treaty Land Entitlement Framework Agreement. It established the framework to address outstanding TLE obligations. Part of that agreement was a path to implementing that obligation under the NRTA for those first nations that never received their entitlements or their full entitlements under treaty.

Today many of the signatories have still not been able to acquire these crown lands because the province is—for whatever reason, largely political—refusing to follow the provisions of this agreement, taking a narrow and restrictive interpretation. For example, Saskatchewan has frustrated its constitutional obligations, along with the Government of Canada, and they continue to fail to implement the terms of the treaty.

Still, while that's happening, we've had no resounding results from the courts. Saskatchewan continues a rolling online public auction of crown lands to private third parties without any notification or recognition of their commitments under the terms of the TLEFA. This matter has forced dozens of first nations into the court system, where technical defences and exhaustive procedural tactics have left the Saskatchewan first nations with no resolution to date.

Finally, there is article eight and the right not to be subject to forced assimilation or destruction of culture. We consistently work with Indian bands that were historically forcibly amalgamated with other bands or have never received recognition as an Indian band under the act, even though the minister can, with her discretion, do so at any time, and/or have not received all their entitlements that they're entitled to under the terms of the treaty.

That's my opening statement.

[The Chair, Liberal, MaryAnn Mihychuk]

Very good.

We're moving on to our next presenter, Ms. Val Napoleon.

Welcome.

[Professor Val Napoleon, Associate Professor and Law Foundation Professor of Aboriginal Justice and Governance, University of Victoria, As an Individual]

Thank you.

I'm delighted to be here. I've been crossing things out, so my presentation will fit within the time frames.

In addition to being a professor and research chair at the faculty of law at the University of Victoria, I'm also the director of the first-ever in the world indigenous law degree program, being launched this September at the University of Victoria.

The perspective I'm going to offer here today is that of indigenous law, and I'm going to be drawing on my research over the last several decades in order to do that. My presentation will be organized under two themes. The first is along the question of, do we need this bill? The second is, what does consent mean, and how might that be informed by indigenous law?

On the first theme of whether we need this bill, I believe it is a modest and positive step toward reconciliation. With its call for alignment and for an application of UNDRIP to federal laws, it lays a solid foundation for the future of reconciliation.

Canada has a colonial history. We all know that. Canadian legislation has not been immune from that history. While much more is required than Bill C-262 to decolonize Canada and to create space for indigenous governments, laws, and jurisdictions, the bill is a first step.

On this point, I want to mention that UNDRIP is not the source of free, prior, and informed consent, rather, FPIC is an international standard of measure for self-determination. In 2008, about 100 legal scholars and experts gave their support to UNDRIP, and they argued that UNDRIP was essentially a principled framework for achieving justice and reconciliation. Further, that it was entirely consistent with the Canadian Constitution and charter. The balancing provision in UNDRIP requires that its interpretation be according to principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance, and good faith.

On the meaning of consent, I want to bring up an indigenous legal discussion, which I believe will substantively and constructively inform the implementation of Bill C-262.

If we think about consent as a collective legal and political construct that arises from systems of law, including indigenous law, it creates obligations. All legal systems recognize, create, vary, and enforce obligations. Obligations are central to the social role of law, and being able to explain obligations is about explaining authority within law. At the very minimum, we can understand consent as the voluntary acquiescence to the proposal of another. We can understand it as an act or result of reaching an accord. We can think about it as a concurrence of minds, and a willingness to act or allow an infringement of an interest.

In other words, and this is what's most important, consent is an act of reason and deliberation.

From an indigenous legal perspective, we need to think about how consent is constructed within indigenous law, and the necessary standards for consent according to indigenous law. The opportunity and the challenge created by Bill C-262 requires us to think critically about questions of indigenous law and about legitimacy. My starting place is that indigenous law must be treated seriously as law. Indigenous legal orders comprise the full scope of law necessary for any society to manage its collective affairs, be they social, political, or economic. Historically, our peoples dealt with violence, lands and resources, family issues, human rights, business and trade, and international relations.

Here's the thing. We know that indigenous law has not gone anywhere in Canada, but it's been undermined, and there are gaps and distortions. It's not enough to know what law is. What's important is knowing what to do when the law is broken. This means that at the very least, an indigenous legal analysis must include the legal processes for a legitimate response to a harm, a conflict, or a problem.

We need to know who the authoritative decision-makers are. What are the legal obligations? What are the substantive and procedural rights? What are the guiding legal principles? What are the public institutions that law operates through, historically and in the present day? Being able to answer these questions enables us to know what the law is and how it should be applied to today's problems. All indigenous legal orders have the intellectual resources to enable people to engage in principled reasoning processes, and that is exactly what creates legitimacy, including for the law of consent.

What are the necessary standards for consent according to indigenous law? Consent has to be lawful, according to indigenous law. In our work with over 40 indigenous communities across Canada, we see some overarching patterns. For instance, Canadian law, as with indigenous law and other systems of law, is founded on aspirations—the want for people to be better than whatever their particular circumstances are enabling them to be. We never live up to these aspirations, but what's important is that we have an opportunity to try.

Across Canada, with the different peoples that we've worked with, the aspirations have included community safety; inclusion in decisions; fairness of process for those harmed, those who have done the harming, and others who are affected; dignity and agency, based on an understanding that people have free will to operate individually and collectively; as well as flexibility and consistency in response to human problems. These aspirations can be understood as standards for consent today. They add up to conceptions of justice deriving from indigenous legal orders.

There are five takeaways that I offer here.

First is that indigenous law of consent is essential, and ensuring that expressions of consent in instruments and in political arrangements are stable and enduring means paying attention to how those matter to indigenous law.

Second, we have in Canada spaces of lawlessness created by gaps in indigenous law where it's been undermined and by a failure in Canadian law, and it's been indigenous women and girls who have faced the violence those spaces of lawlessness have created.

Third, indigenous law hasn't gone anywhere, but the ground is uneven. The important work today is to rebuild indigenous law, and it's going to take just as much work as with any other system of law in the world.

Fourth, indigenous law will make Canada a better place in ensuring that there's a multi-juridical process of working out problems. Law is one of those distinct modes of governance.

Lastly, indigenous law must be conceived on a larger legal-order scale, and the rebuilding must include indigenous human rights from within indigenous legal orders as a part of indigenous governance.

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Now we're going to go to the third presenter, who is coming in from Saskatoon, Mr. Ken Coates.

Oh, you're in Kelowna. I'm sorry about that.

Welcome.

[Dr. Ken S. Coates, Canada Research Chair in Regional Innovation, Johnson-Shoyama Graduate School of Public Policy, University of Saskatchewan, As an Individual]

Thank you very much, Madam Chair, and members of the committee. I'm honoured to speak to you about an issue I consider to be of fundamental importance to the future of Canada. I speak to you today from the homeland of the Okanagan Nation. I was supposed to be in Norway, but Toronto can't handle winter so they closed down the airport and I ended up in Kelowna instead. That makes sense to me.

My name is Ken Coates. I'm a Canada research chair at the University of Saskatchewan. I'm delighted to speak with you today.

UNDRIP came out of a remarkable international process I think we should always recognize and honour. From that process came two really key messages: first, that indigenous people have been marginalized around the world, and second, that they have articulated a strategy for their own inclusion, autonomy, and cultural survival. UNDRIP also reminds us of a simple fact that indigenous peoples have never been “given” full recognition of their rights and they've have had to fight for them constantly over many years.

When UNDRIP came to be considered by the Government of Canada, it was presented as an aspirational document. It does spell out very clearly the dreams of indigenous peoples and what should be but are not yet the goals for the people and the Government of Canada. I endorse in total the spirit of UNDRIP. It identifies what indigenous peoples desire and deserve, and it has the capacity to hold the nations of the world accountable.

The main question for today, and for all of you, is whether Bill C-262 is the right mechanism for realizing the potential of UNDRIP. While I see many parts of it to be true, I think the answer is far from clear. By the way, I'm not a lawyer. I'm an historian and a public policy person. I'm not as skilled in the nuances of the law as everybody else might be. However, I'm a practical person, so the question for me is whether this bill will result in markedly better outcomes for indigenous peoples in Canada in the short term, medium term, and the long term. At this point, what I would suggest is that the answer to that is maybe. I think we can do better than that with this bill, but also with subsequent conversations.

There's a lot of conversation about duty to consult and accommodating free, prior, and informed consent. I want to not so much deal with that as focus on some other questions. UNDRIP is a remarkable document. It is extremely comprehensive. We should all be very much aware of how broadly it is based in the needs and aspirations of indigenous people. There are a lot of articles that relate to things like improved health outcomes and education, and the protection and preservation of indigenous languages and cultures. When I look at this and see this as harmonizing these laws and actually making them mean something, just think for a second what it would actually mean for Canada, with more than 60 first nations and different languages across the country, if we actually took seriously the commitment to improve education, including in indigenous peoples' languages.

That is something we should have done 50 years ago. It's something we should have done 100 years ago. Now we have most of those nations' languages on the verge of destruction and disappearance. To just take that one issue and make it into a national priority would cost hundreds and hundreds of millions of dollars.

I'm very much in favour of what UNDRIP says about the right of self-government and a meaningful autonomy. When I think of what will actually make a difference for indigenous people, I see the re-empowerment of indigenous communities and nations with appropriate and equitable funding as being by far and away the most important thing we can have arise at the end of this, not necessarily more government programs.

One of the concerns I have about the bill is that it doesn't really outline a process for going forward and actually indicating the desired outcomes—how will we determine success? I share some of the concerns my colleague Dwight Newman expressed today about the possibility that UNDRIP could result in a rapid expansion in the legal context. If you actually look at this on a national scale over the last 20 years or 30 years, the fact that indigenous people have had no choice but to go to the courts repeatedly to fight for basic rights has had a huge impact on those communities. It has cost them hundreds of millions of dollars, without necessarily bringing the results and resolution we actually need and desire. The question is whether UNDRIP and its accommodation within Canadian laws change this dramatically.

I have another concern with this, and it goes back to when UNDRIP first came out. I work an awful lot with indigenous communities in northern Canada and across the west, and I go to talk to high school and university groups a lot. When UNDRIP first came out as a public document, there was great excitement because UNDRIP was so comprehensive and offered so many different things, promised so many different changes. My concern, and I ask you to take it very seriously, is whether Canada will once again over-promise and underperform regarding indigenous rights and entitlements. We have done so over and over again, and we have not broken that cycle. It's really interesting to think about these implications. Will this bill actually change this practice, or will it simply set us up for more evaluation and assessment over time?

We've had lots of commitments in the current government over the last couple of years: a statement of principles, a new framework for relations with indigenous peoples, a commitment to the rethinking of judicial processes. The latter I agree with very strongly. However, we've also had Cindy Blackstock's remarkable effort to expand social service support for indigenous communities and the fact that the battle went on for so long to address a problem that most people would recognize quite openly and consistently.

I guess the other part of this is whether indigenous communities can expect that UNDRIP would now set out operational priorities for Canada. How do we actually manage Canada under an arrangement that really does respect nation-to-nation relationships and the autonomy of indigenous people? I'm concerned that, through the annual reports, we'll now simply be annually reporting on what we haven't done, the fact that Canada has not actually responded to the opportunities before it.

I look forward either in this bill or in the subsequent implementation strategies that arise from this.... The references speak specifically to the security of existing negotiated agreements with indigenous peoples, to make sure that those agreements that have been already been put in place in good faith stay and continue on. More importantly, I'm really anxious to see that we have a commitment to a different way of making decisions in Canada. I'm in favour of what I describe as a co-production of policy. Co-production of policy is that when indigenous affairs are on the table, indigenous peoples are there as part of the process, and that when funding decisions are being made, you actually co-produce those funding priorities. It's not that a government, however well meaning, sort of sits back and does this from afar, but that it in fact negotiates with them directly.

I also would hope that, either in the presentation of this bill or in the bill itself, Parliament recognizes the complexity and potential cost of the UNDRIP commitments. To even go halfway toward meeting the obligations set out under UNDRIP would cost billions of dollars. I think it's money that we have to spend and we should have spent it a long time ago, but it will cost a great deal and take a great deal of effort to put in place.

As I look through this, I see we have an opportunity and obligation in Canada to tie all the various threads together. We have lots of things going on in the aboriginal space in this country. UNDRIP is part of the puzzle. We have the desire to build nation-to-nation relationships, the government statement of principles, the whole question of inherent and treaty and aboriginal rights, the completion of modern treaty processes, aboriginal self-government, the re-evaluation that I hope is the renegotiation of earlier treaties starting in the maritime provinces, the reform of judicial and conflict resolution systems, and the appropriate financing of indigenous services and infrastructure.

Will this bill move it in the right direction? I'm not so sure. I hope it does. I celebrate the spirit and aspirations in UNDRIP. I think the practical application is the part we have to focus on.

Let me just finish up with a quick observation. When governments make policy—not just specifically with aboriginal peoples but with all peoples in all policy areas—there are actually two elements. One element is the formulation of policy and legislation, the process that you honourable citizens are doing right now, bringing the legislation and passing it and basically declaring the government's intent, the intent of the Parliament of Canada.

The second part is the implementation of the policy. What do you actually do with it? What actually comes out the other end? We pay way more attention, as academics, policy-makers, and commentators, to the formation of policy and much less to the implementation. Without the second part, without focusing on implementation, if this bill comes into effect, if we are going to harmonize these laws, how are we going to do it, what is the time period, and what are the funding allocations? Will real change actually occur at the other end of this? Without that second level of conversation and discussion, UNDRIP will lose its effectiveness and become yet another sort of failed promise to indigenous peoples.

My overriding observation is simply this. Let's not set indigenous peoples up for failure at the hands of the Government of Canada again. We've done that too many times. We can change that trajectory and that agenda a great deal.

Thank you very much.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

We're now into the questioning portion of the meeting and we start off with MP Vandal.

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

Thanks to all of you for your presentations. They are very well appreciated.

As you all know, in Canada indigenous rights are enshrined in our Constitution, section 35. The rights of the Métis, first nations, and Inuit are declared in section 35, which really has been the foundation for the many court victories that have been referenced this afternoon by several people. Over and above the very important discussion we're having today, the Prime Minister announced several months ago that we are embarking upon a recognition of rights framework. What are those rights in section 35? How can we articulate them, describe them, and put them down on paper? We're doing that in consultation with first nations, Métis, and Inuit across Canada.

My question to all of you is very simple. Let's assume that UNDRIP gets approved in Parliament. I believe the majority are in favour of this. What is the next step? What is the next step to actually implement what we've approved?

Let me start with Ryan Lake.

[Ryan Lake]

The next step is logically going to take us to the legislative assemblies across the country, where provincial governments will now have an incentive to follow suit and decide how they're going to implement it through those powers provided them under the Constitution. However, it's also going to go into the courtroom, where we will now have, from my perspective, more teeth. I won't have to rely on the 1763 Royal Proclamation for conceptualization of what these treaty rights mean or those aboriginal rights mean. It will provide additional colour and teeth to making arguments across the spectrum of the various issues that are facing first nations.

[Prof. Val Napoleon]

The first step, from my perspective, is to support the rebuilding of indigenous law on the basis of indigenous legal order. That's the larger-scale legal order, rather than community by community, but looking at alliances around specific legal questions.

This is work we're doing now with the indigenous law research unit. We've been substantively articulating indigenous law around questions of lands and resources, around water, governance, and dispute resolution. We're starting to look at child welfare, as well as constitution building. It's work that is absolutely possible with support for indigenous groups to undertake, but that is building a symmetrical relationship between indigenous law and Canadian law, and it means ensuring that reconciliation includes law to law, not just entirely founded on Canadian law.