Evidence of meeting #101 for Indigenous and Northern Affairs in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was undrip.
A recording is available from Parliament.
5:05 p.m.
Liberal
Dan Vandal Liberal Saint Boniface—Saint Vital, MB
Do we not have a lot of work before that with our own laws in Parliament, not necessarily before but at least concurrently?
5:05 p.m.
Prof. Val Napoleon
The work can go on concurrently, with indigenous communities taking up the homework we have to do with the rebuilding of our own legal orders.
5:05 p.m.
Canada Research Chair in Regional Innovation, Johnson-Shoyama Graduate School of Public Policy, University of Saskatchewan, As an Individual
That is an excellent question. I would put a lot of emphasis on what I call symbolism. I think we need a national statement of reconciliation. You can call it a royal proclamation, as Miles Richardson just did. Everything everyone else said makes an awful lot of sense, but we need public engagement and we need ceremony. We need a situation where our parliamentarians, preferably at the provincial and territorial and federal levels, with all the indigenous groups participating, actually stand up collectively and say that we are on a new course. If you trickle this out through a whole bunch of legislative changes, we'll move forward a bit, but if you actually stand up and say the country has changed....
Remember 1982? I'm old enough to remember 1982, when the Constitution was patriated. Actually, immediately thereafter, people started talking differently about their country. We need that. Without that kind of major public statement, what happens in the legal process trickles out, we don't get enough engagement with it, and we don't get enough celebration of the fact that we are going to do Canada differently in the future than we have in the past.
5:05 p.m.
Liberal
Dan Vandal Liberal Saint Boniface—Saint Vital, MB
It's often been said by several people here that UNDRIP really doesn't distill any new laws, but it clarifies them. UNDRIP is really an international instrument. Why was it necessary for Canada to adopt what was largely an international instrument to move forward?
Let me start with Val. Do you have any thoughts on that?
5:05 p.m.
Prof. Val Napoleon
Law is a distinct mode of governance. It's a part of how we manage ourselves, including all of the political aspirations that reflect human beings living in societies. What UNDRIP allows us to do is to build a national imagination, a legal imagination within which it is possible to build a different kind of relationship between indigenous people and the rest of Canada. It's about building a public intellectualism within which we can see and trust in one another, and we can imagine ourselves solving problems without resorting to violence. That's the promise of law, and what we have to guard against is the failure of law, through processes of legitimacy and processes such as consent.
5:10 p.m.
Partner, Maurice Law
I would agree with that.
It's not so much why we had to have this international body come up with this statement of principles. I think it's a reflection of the global perspective of indigenous rights, and that's very complementary to the local perspective of indigenous rights. I think the two will work hand in hand.
5:10 p.m.
Conservative
Kevin Waugh Conservative Saskatoon—Grasswood, SK
Welcome, everyone.
Mr. Coates, you're from my city, so I think you did the wise thing today. Head west, young man. Toronto airport is a disaster. Okanagan is much nicer than Norway.
I'm going to start first with Mr. Lake.
Welcome back. You were here in September, I believe.
5:10 p.m.
Conservative
Kevin Waugh Conservative Saskatoon—Grasswood, SK
If issues are bound to wind up in litigation, like you said, why not define terms prior to litigation?
You made that statement.
5:10 p.m.
Partner, Maurice Law
Let's use the Treaty Land Entitlement Framework Agreement as an example. That instrument, which I would argue is quasi-constitutional, actually defines what the relationship is and what those terms are. However, politically you will find that governments will make ideological decisions to circumvent or narrowly circumscribe what those mean. The result is the frustration of the ability for first nations in that context to achieve the reasonable outcome they expected when they entered into that agreement some 30 years ago.
I would see something like UNDRIP coming into the fold and saying, “Well, hold on a second here, not only is this conduct not honourable, to narrowly interpret these provisions so as to frustrate the acquisition of treaty land entitlement, but it also offends the international sense that we have a right to have this agreement enforced, and not through a series of technical legal battles that are being waged all across the province with no tangible result.”
That would maybe help a judge say that this is pretty simple: A plus B equals C.
5:10 p.m.
Conservative
Kevin Waugh Conservative Saskatoon—Grasswood, SK
We've seen the provincial government selling crown lands, as Mr. Lake has said.
Mr. Coates, because you're from Saskatchewan, what are your thoughts? You're sitting at the University of Saskatchewan, and our government, whether it was this year or last year or the year before—every day you see it in the ads and newspapers—continues to sell crown lands.
I wonder if you could comment and maybe back up what Mr. Lake said earlier.
5:10 p.m.
Canada Research Chair in Regional Innovation, Johnson-Shoyama Graduate School of Public Policy, University of Saskatchewan, As an Individual
As Ryan suggested, I believe very much that we need to find a way to bring these issues to resolution, ways in which first nations actually feel as though they have been respected and honoured in the process. The problem with these issues is that they drag on way too long and we do not have proper mechanisms to solve the problem, address the problem, and bring out a solution.
The other issue, of course, is Canadian federalism. When we try to develop a national policy for dealing with indigenous folks, we have the complications of federal-provincial relationships. Saskatchewan, for example, categorically refuses to consider resource revenue sharing. We have it in Yukon, Northwest Territories, Nunavut, Labrador, northern Quebec, and we have it under discussion in Alberta and Ontario. British Columbia has resource revenue sharing.
You end up with this hodgepodge of policies where many communities get to benefit directly from resource development activity. In Saskatchewan, sadly, it's a bit more indirect. We need to reconcile these things in a national framework where there is full [Technical difficulty—Editor] into it and it provides much more guidance, as Mr. Lake has suggested.
5:10 p.m.
Conservative
Kevin Waugh Conservative Saskatoon—Grasswood, SK
Ms. Napoleon, we've talked a lot about the formation of policy and the implementation of policy. Can you touch on those two?
5:15 p.m.
Prof. Val Napoleon
The underlying values for policy and for its implementation have to include democracy and the importance of law in reaching decisions that people will uphold, even if they don't get their own way. That is, their processes are legitimate and inclusive. Law and those underlying values enable people to operate from wherever they're placed within our society in a way that will ground them in a larger collective political will.
This opportunity brings together all our ideas and hopes about what is possible in Canada. Part of what's important is to recognize that law, including indigenous law, is never going to be a panacea, but that there are constructive processes through which hard decisions are going to be made. Indigenous people have always had to make hard decisions through our histories, and continue to do so today.
What are the different ways we're going to enable that to go on in the absolute fullness and depth of what's necessary to deal with the complexity? How are we going to enable people, educate people, and create the kinds of conversations that will allow all of us to act on those decisions and move forward?
5:15 p.m.
Conservative
Kevin Waugh Conservative Saskatoon—Grasswood, SK
Have other nations grappled with legal questions in applying UNDRIP, and if so, how have they managed the FPIC? We've talked a lot about FPIC and other issues around here. Can we learn from anybody else?
I saw an article in The Hill Times, by you actually, Mr. Coates, along with Mr. Newman. You talked a bit about this. Have we learned or do we need to learn anything from other countries?
5:15 p.m.
Canada Research Chair in Regional Innovation, Johnson-Shoyama Graduate School of Public Policy, University of Saskatchewan, As an Individual
If you don't mind my answering that one, I'll say we absolutely need to learn from other peoples. A lot of other people learn from us, by the way, and a lot of us who specialize in this field end up getting lots of invitations to other countries to talk about what we do right and what we do wrong.
We can learn from Norway. Norway actually has been very enthusiastic about accepting international instruments, such as ILO 169. I was there just a couple of weeks ago, and actually, in five different meetings, people talked about ILO 169 and said, this is why we do it and this is why we have these policies in place. That was kind of interesting to hear.
We can certainly learn a lot from what happens in New Zealand. That country signed a treaty, the Treaty of Waitangi, in 1840, but fairly quickly forgot about it. They gave new life to it in the 1970s, 1980s, and 1990s, and actually have now resurrected it as an absolute foundation of national decision-making, included the Maori in some very sophisticated and comprehensive ways, and figured out a way—as Mr. Lake was talking about in terms of conflict resolution—that allows it to work outside the legal process and more in a way of shared cultural interest. We can learn from them, as well.
We can learn in places like Australia, where they haven't done this very well, where they have marginalized indigenous people in a legal and constitutional way, and we can see the lingering effects of not accepting a national obligation to work with indigenous folks.
5:15 p.m.
Liberal
5:15 p.m.
NDP
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
Thank you, Madam Chair, and thank you to all presenters.
I want to start first with Val, because I listened with interest to the initiative that you people have taken in Victoria. I know for a fact that the United Nations Declaration on the Rights of Indigenous Peoples has been translated into more than, I believe, 50 indigenous languages throughout the world.
In my language, there's no such concept as consent, but there is a concept that is between consent and veto that exists in my language, in Cree law. In fact, we incorporated that concept into one of our agreements that we signed on forestry, back in 2002, so the whole concept of butshtenamoon is incorporated in that 2002 agreement with Quebec.
How do you see that working in the future, given all the research you have done so far, and how can we incorporate this indigenous law into treaties and other instruments or agreements?
5:20 p.m.
Prof. Val Napoleon
One of the major research initiatives that we have right now is working in three regions of water scarcity. We're working with the water law with the Tsilhqot'in, the Cowichan tribes, and the Lower Similkameen. In addition to the indigenous law research, we're looking at all of the related colonial law. The purpose of this, over three years, is to bring together the laws, in their integrity, to allow people to build systems of stewardship for water in their regions.
Similarly, alongside the work that we're doing with lands and resources, in addition to substantively articulating Tsimshian law and Secwepemc law, as examples, we're also looking at a similar example with both the Canadian federal and provincial laws. We're looking at ways that indigenous peoples from the different regions that we're working with are going to be able to figure out, with Canada, how the laws are going to relate and how that is going to matter insofar as the kinds of subject areas that indigenous peoples are concerned about.
Those are several examples. We have many other kinds of examples.
The work of indigenous law is absolutely possible. The legal resources that are available with indigenous law can be applied to complex problems of today, and they should be. Indigenous legal resources have much to offer the different conversations that are before the committee here and in other forums.
5:20 p.m.
NDP
Romeo Saganash NDP Abitibi—Baie-James—Nunavik—Eeyou, QC
Thank you. Congratulations on that incredible initiative.
The next question is to both Ken and Ryan.
Ken, you were asked whether there would be a better outcome for indigenous peoples once this legislation is passed and your answer was “maybe”. You're not too sure if anything is going to change for indigenous peoples with respect to UNDRIP. I sort of agree with that because as indigenous peoples we have a long-time experience with, on one hand, signing agreements, and the next day those agreements or treaties not being respected.
I feel that indigenous rights have been recognized and affirmed through section 35 of the Constitution. They've been recognized and affirmed under the UN declaration. They've been confirmed on many occasions by the courts. The problem has been that governments did not respect those decisions or those constitutional or international law provisions. That's the problem.
I think in a way this is going to continue even after the passage of Bill C-262, unfortunately, unless we have a brand new government on the other side of the room in Parliament that commits to doing things differently.
I would like your comment on that, both Ken and Ryan.
5:20 p.m.
Canada Research Chair in Regional Innovation, Johnson-Shoyama Graduate School of Public Policy, University of Saskatchewan, As an Individual
If it's okay, Ryan, I'll go first.
Number one, I am astonished by the patience of indigenous peoples. We've been talking about this for 150 years and one of the most single continuities in indigenous law is government lawlessness: you pass a law; you ignore it.
Aboriginal folks win Supreme Court decisions and say, “Wow, this is great”, and then 10 years later what have you got? You have a doubling of the suicide rate. You have more marginalized people living in poverty. I find this really frustrating.
Right now all parties have reached the desire for a different relationship and wanting to move things further. Personally, since I only get a chance to say this to all of you once, I think we should take all of the issues of indigenous rights out of the partisan arena. I think what we should do is make it an all-party process for negotiating with first nations and working with first nations, Inuit, and Métis, and depoliticize it. It is too important. Indigenous people pay 100% of the price. They're the ones who are suffering. They're the ones who continue to suffer.
However, I am a complete optimist. I was actually raised in Yukon. The Yukon of 2018 is not the Yukon I grew up in in the 1960s. Indigenous peoples have been empowered. The Yukon territorial government has accepted and incorporated indigenous involvement at all sorts of different levels. The celebration of indigenous culture, language, and tradition is extremely strong. We've watched that happen in a place that quite frankly in the 1960s was discriminatory. Aboriginal people were marginalized, as you were saying, and you understand that extremely well in northern jurisdictions and resource economies. Yukon is not the same place. I wonder if we can actually take the northern experience, which is very rich and very diverse, and not look at ideas from Ottawa down, but look at ideas from the north and bring them south.
5:25 p.m.
Partner, Maurice Law
I come back to this idea of how FPIC is playing out in other countries, and I think if we look at Canada, we've seen FPIC play out historically during the Laurier government when you had Indian Act provisions that provided for informed consent before reserve lands could be taken from first nations, and the result was that first nations lost 40% of their land mass during a very brief period of time.
To update and acknowledge and recognize, and decide that we're now taking this seriously, I think, is an important step in our evolution toward ensuring that we don't let those wrongs from the past emerge in the future.
5:25 p.m.
Liberal
