Indigenous and Northern Affairs Committee on April 23rd, 2018

[The Chair, Liberal, MaryAnn Mihychuk]

MPs, welcome. We are here at the indigenous and northern affairs committee, on the unceded lands of the Algonquin people, at a time when Canada is finally starting to move, with significant steps, on understanding the truth and moving toward reconciliation.

We look at UNDRIP as another piece of this movement and advancement. We are hearing the views of guests from across the country on the declaration and its impacts on Canada, indigenous people in general, and anything else they wish to bring up.

As presenters, you'll have 10 minutes. I'll give you some indication of where you are when you have two minutes left, or that you should wrap up. After the presentations, we'll go to rounds of questioning. Welcome.

I have Ms. Phare first. Welcome to the committee.

[Merrell-Ann Phare, Centre for Indigenous Environmental Resources and the Phare Law Corporation, As an Individual]

Thank you, Madam Chair, for the invitation to present to the committee.

My name is Merrell-Ann Phare. I'm based out of Winnipeg, Manitoba. I'm the founding executive director of the Centre for Indigenous Environmental Resources, which is a national first nation charitable environmental organization. Working together in 1994 with 10 chiefs from across Canada, including Phil Fontaine, Matthew Coon Come, and Manny Jules, whose names some of you will know, we built CIER. Since that time we've implemented across Canada more than 400 environmental capacity-building projects in as many first nations.

I'm a lawyer. I work and write on environmental indigenous law, water and water governance, and treaty land entitlement issues. In 2016, on behalf of the Government of the Northwest Territories, I negotiated two transboundary water agreements in the Mackenzie River basin, between the governments of NWT and Alberta and between the governments of the Northwest Territories and British Columbia.

I want to applaud both Mr. Saganash for his tireless work and the current government for their commitments to the United Nations declaration and on building nation-to-nation relationships. No government in Canadian history has made such important statements. However, to be more than aspirational goals, they must be enforced in law.

I've read the transcripts of evidence given to the committee to date. I'm going to assist you by trying to focus on just one thing—namely, the free, prior, and informed consent piece. I want to start by saying that it does not, in my view, mean a veto, but it does mean some very important process and substance elements, which I will explain.

Here's the issue as I see it. Indigenous nations were original partners in Confederation and should have been recognized as such. We should have, from the beginning, worked together as collaborating nations to build Canada. But we didn't. For example, we made treaties and then ignored them. This is the problem.

The solution, the one that would greatly prevent or reduce project-based disputes—think of pipelines when I say that—and the one that would also result in real reconciliation, lies in a government-to-government approach to consent. This is mutual consent between governments in Canada—federal, provincial, territorial, and indigenous. My colleagues and I call this “collaborative consent”. We believe it's a nation-to-nation mechanism to achieving the United Nations declaration.

Full reconciliation will happen when indigenous nations are recognized as partners in Confederation and Canada's system of governance is structured accordingly. Yes, this sounds high-minded, abstract, and theoretical, but it isn't. It's happening already. We have not only proof of possibility; I will share with you some examples. We just need to provide more oxygen to these examples. Bill C-262 can make that happen.

Collaborative consent is how you get to the United Nations declaration. It's simple to understand and hard to do, because it means a different attitude and a real change in practice, and also in institutions and governance. We first wrote about the collaborative consent concept in 2016. It was the approach we'd been using in the Northwest Territories since 2005 and more recently in negotiating the water agreements I spoke to you about.

You have an executive summary in front of you setting out the details of our seven hallmarks of collaborative consent. It's written in the context of a B.C. water application, but it applies to all situations.

A nation-to-nation approach to consent, to what we call collaborative consent, already operates on a daily basis in our own country, and it has worked well. Today federal, provincial, and territorial governments co-operate, collaborate, negotiate, and plan many things that are of common, overlapping, or even conflicting interest through a process called “co-operative federalism”. This process is ongoing, is not time-bound, is rarely ever perfect, and is necessary to make a complex society like Canada work. There's no real other way to do it. It's the way we do democracy in Canada.

Over the last 151 years, this approach has been tested well. We have grown and evolved as a country. We know how disputes occur and how they're resolved. We also know that they are very rare. Health care is a prime example of where conflicts can arise, as is anything to do with oil and gas, as we see from our headlines daily. But extreme conflict, such as intergovernmental litigation, is actually very rare. If you think about this, at co-operative federalism tables, jurisdictions are actually achieving each other's free, prior, and informed consent to proposals on the table. Collaborative consent is co-operative federalism as if indigenous nations had been participants from the beginning as part of the governance of Canada. We're partway there. We just need to go a bit further.

The day after this bill is passed into law, federal and indigenous governments should start formal transition to collaborative governance arrangements, as per co-operative federalism. I'll give you an example of an immediate change that could occur. In the 2016-17 fiscal year, there were 141 FPT—federal-provincial-territorial—intergovernmental meetings. Five of them were between premiers, 44 of them were between ministers, and 85 of them were between deputy ministers. This is where all of the work is done to set or partner on the policy and program directions for Canada about almost every aspect of Canadian society, regardless of who holds jurisdiction. This is where the real work of governing this country happens. Levels of governments bring their jurisdictional authorities to the table, and then they negotiate how they're going to work together on any given issue.

None of these meetings involved indigenous governments, and only one of them had anything to do with indigenous issues. These FPT meetings should include indigenous nations. They should be FPTI tables. It is clear that indigenous nations would have to self-organize in a way that is conducive to permanent participation. Many are in governance transition, it's true, but that's a solvable problem. The most important thing is that these tables of co-operative federalism must include permanent chairs for indigenous nations.

We need to achieve consensus at FPTI tables about broad directions, policies, and agreements that drive Canada. Think water and energy policy, climate change, and conservation targets. These are the upstream discussions necessary to preclude end-of-process or project-based disputes. Under co-operative federalism, agreement isn't always reached, and governments must or do flex when diplomacy and negotiations fail. This is unlikely to change. Governments will always have the things that they can resort to if other jurisdictions don't agree, such as legal action. Collaborative consent doesn't mean that indigenous governments won't sue other governments over specific disagreements. I just believe that it's less likely to occur.

I'll give you three examples of where collaborative consent is already happening in Canada. One example is in Manitoba. We are developing a collaborative governance table in southern Manitoba, involving 17 mayors, 10 first nations chiefs and, hopefully, the Métis. This is a collaborative consent process resulting in a permanent governance table. It covers 70% of the population of Manitoba and 68% of the GDP. Collaborative decisions can have a huge impact at this scale.

The NWT is another example. It has a territorial resource revenue-sharing agreement with all indigenous governments. What this means is that, regardless of where resource development happens anywhere in the Northwest Territories, 25% of all the revenues that the Government of the Northwest Territories receives from resource development is shared among all indigenous governments according to a sharing formula that the indigenous governments themselves developed. This is in addition to whatever local impact benefit agreement might be negotiated with the directly impacted community. This is the kind of solution needed to deal with linear projects like pipelines.

The NWT also created two laws, the Wildlife Act and the Species at Risk (NWT) Act, through a co-drafting process where all hands were on the pen, rather than a co-development process where, at the end of the day, justice holds the pen over the text.

To conclude, we are in the middle of rebuilding our nation, starting with nation-to-nation relationships. There are 150 years of work that should have been started long ago, yet the opportunity sits before us. We all will, by necessity, need to change.

I want to leave you with an image. Think of our FPTI governments as beams. We all need governments to bend towards the space where we can work co-operatively together at a fully occupied table of Confederation. We have had three of the four beams work, bend, and build for 151 years, but we need the final beam to be in place in order to achieve reconciliation of all Confederation. Bill C-262 gives us the focus and fortitude to bend all the beams and be more explicit about the necessity, not the luxury, of indigenous participation. The collaborative consent examples that I've shared show that it is happening in small places.

Bill C-262 will mandate that this thinking be mainstream, and will require everyone, no matter what their place in the system, to look at their role through the lens of compliance with the UN declaration. This committee needs to think about how we accelerate this whole thing so that it will happen everywhere, from top to bottom to top. This path we're on may seem very difficult. It's certainly complex.

However, as the Maori say, we have worked too hard not to work harder; we have come too far not to go further.

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Welcome. It's not your first time before us, and it's good to have you back.

You have 10 minutes for your presentation, sir.

[Thomas Isaac, Partner, Cassels Brock & Blackwell LLP, As an Individual]

Thank you, Madam Chair.

First of all, thank you to the committee for inviting me here today to give you some comments on Bill C-262.

My name is Tom Isaac. I'm a partner with Cassels, Brock & Blackwell. I'm here in my personal capacity. I practice exclusively in the area of aboriginal law across Canada.

My comments today are focused on why incorporating UNDRIP within Canada's already highly developed and world-leading legal regime. Protecting indigenous rights against unilateral and unjustified state action requires a prudent and thoughtful approach. This approach needs to be sensitive to existing Canadian law and the tremendous efforts undertaken by our courts, indigenous peoples, and some public governments over the last 25 years. Bill C-262, as currently drafted, does not reflect the necessary prudence or thoughtfulness required, in my respectful view.

UNDRIP and the embrace of the principles therein mark a critical step forward by some parts of the international community to recognize and protect the rights of indigenous peoples globally. This is a significant international human rights achievement. UNDRIP provides an important benchmark in a world that has too often harmed, mistreated, and exploited indigenous peoples.

You will note that I said “some parts of the international community”. Not all states with indigenous peoples are on the right path, and the process itself relating to UNDRIP has been divided. During the 2007 UN General Assembly vote regarding UNDRIP, only 42 states—that's out of 88, according to the United Nations at that time—voted in favour of UNDRIP. In fact, most of them put the same caveats on their vote in favour of UNDRIP that Canada ultimately did, in terms of its being subject to domestic law. So 42 out of 88 voted in favour of UNDRIP, while 4, including Canada at the time, took principled reasons to vote against it. As for the other 42, they either abstained, of which 100% of those abstaining that day were states with indigenous peoples, or they didn't bother to show up at the UN for the vote. Of those states, 93% had indigenous peoples.

My point here is that it's important to recognize that UNDRIP was drafted in the context of this division. By necessity, UNDRIP needed to be blunt and as easy to understand as possible, given that it was intended to apply globally to address those states that act without constraint against the rights of indigenous peoples.

This is not to suggest that UNDRIP has nothing to offer Canada. I want to be very clear that many elements of UNDRIP can be extremely relevant to Canada. In particular, I would focus on the ones relating to education, health, equality under the law, the development and maintenance of political systems and institutions, social and economic security, and gender equality. While these and other elements of UNDRIP are relevant to Canada, any effort to adopt UNDRIP must reflect the distance that Canada has travelled to date to prioritize reconciliation with indigenous peoples, the lessons we have learned over the past decades, and the significance—I would say the unique significance at law globally—of section 35, a uniquely Canadian creation.

Since the 1990 Supreme Court of Canada decision in Sparrow, the court has developed a framework for protecting indigenous rights and reconciling those rights with other indigenous and non-indigenous Canadians through nearly 70 decisions. The progress made so far has been the product of substantial and purposeful efforts and dialogue between indigenous and non-indigenous Canadians. Today, after decades of effort and investment by all parties, we have a constitutional regime that, for example, recognizes and protects Tsilhqot’in aboriginal title rights to land, and identifies the degree of consultation required when reversing the flow of a pipeline.

We also have a federal government that has expressly stated that Canada's most important relationship is with its indigenous peoples. As each year passes, Canadians, indigenous and non-indigenous, gain increased certainty and confidence in how indigenous and non-indigenous peoples can respectfully and productively live together.

In introducing Bill C-262 at second reading, the bill's sponsor said that the bill promises to “at least provide the basis or framework for reconciliation in our country”, with respect, suggesting that a new approach to indigenous rights is needed, one focused on reconciliation. Again, with respect, reconciliation has been the primary goal of the Supreme Court of Canada for nearly three decades. Again, I'm not here to suggest that we're done, but reconciliation is at the core of our case law to date.

Progress in defining and advancing reconciliation has resulted in increasing clarity and has allowed us to have more meaningful discussions, better protect aboriginal and treaty rights, and promote reconciliation through practice. Bill C-262, as it is presently drafted, risks disrupting the increased clarity within Canada's legal regime for protecting indigenous rights and as a result, risks becoming an obstacle to the pursuit of reconciliation.

UNDRIP itself cannot be meaningfully incorporated into Canadian law unless it is understood in relation to the existing Canadian legal framework, importantly, including section 35. For example, UNDRIP uses such terms as “indigenous”, “the lands and territories of indigenous peoples”, and “free, prior and informed consent”, each of which will need to be interpreted within the context of Canada's existing legal regime for the protection of indigenous rights.

It is presently unclear in Canadian law who “indigenous” refers to. In Daniels, the Supreme Court stated that the term included those individuals who do not possess section 35 rights. Additional instruction is needed to clarify the intended beneficiaries of the rights set out in UNDRIP. Is it intended to apply to all indigenous peoples throughout this great country, including those who self-identify as being indigenous?

Likewise, Canada has developed a highly sophisticated understanding of indigenous interests in land, including traditional territories, aboriginal title, a right to the land itself, and treaty lands. These terms aren't used in UNDRIP, which lacks specificity, including any relation to overlapping and competing indigenous interests, which is a very live issue in Canadian law.

Finally, much has already been said about free, prior, and informed consent. I'd be delighted to talk more about this concept. It means a veto, or a duty to consult that is consistent with what already exists in Canadian law, or something different. This phrase is clear on its face upon plain reading of UNDRIP, and I think credit ought to be given to the drafters. Any attempt at redefining the phrase in a less than forthright manner, in terms of its application to Canada, risks undermining the needed and necessary transparency in the reconciliation process. I say this with respect. Say what you mean and mean what you say.

Nowhere does UNDRIP refer to reconciliation or give specific consideration to how indigenous and non-indigenous Canadians can respectfully coexist. Such considerations are irrelevant for most countries, where indigenous rights are fully subject to the acts of a government. In Canada, reconciliation and principles, like the honour of the crown, are at the core of the relationship between indigenous peoples and all Canadians and work to direct and constrain how governments interact with indigenous rights.

In the preamble of Bill C-262, it suggests that the Parliament of Canada recognizes the principles set out in UNDRIP. There are many principles enunciated in UNDRIP, which are all relating to things like democracy, the rule of law, and the charter, none of which are novel to Canada. However, section 5 of Bill C-262 refers to the objectives of UNDRIP, although UNDRIP makes no reference to its objectives, its goals, its aims, or its intentions.

With respect, the sponsor has said that Bill C-262 can advance “justice” and “reconciliation” and clarify “the existing rights of indigenous peoples” and establish “very clear rules”. As presently drafted—and again, with respect—the bill provides no clear or even vague direction on any of those matters, does not explain how it will advance justice or reconciliation, and does nothing to clarify the existing rights of indigenous peoples in Canada.

Finally, the bill is missing an element that should be essential for any legislation that proposes to alter Canada's legal regime, which would be a clear explanation of how the outcome of adopting the bill will differ from the current law existing in Canada.

Canada's legal regime relating to the protection of indigenous rights is evolving and can benefit from being examined critically against the clear, if bluntly stated, articles of UNDRIP. However, simply adopting UNDRIP, without clear direction of how it should interact with Canada's existing legal regime risks disrupting the increasing clarity that has been gained through unprecedented efforts and decades of decisions by the Supreme Court of Canada.

To conclude, to move forward, Canada requires a thoughtful and purposeful approach, consistent with the honour of the crown, and I suggest to the committee that this is what reconciliation deserves. To the extent that the bill can contribute to that dialogue, it should be revised to provide the context and substance required for promoting and enhancing reconciliation and protecting indigenous rights in Canada. As I wrote in my 2016 report as the minister’s special representative on reconciliation with Métis, “Reconciliation is more than platitudes and recognition. Reconciliation flows from the constitutionally protected rights...protected by Section 35 and...must be grounded in practical actions.”

Those are my submissions.

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Our questioning begins with MP Dan Vandal.

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

Thank you very much to both of you for your thoughtful presentations.

I want to begin with Thomas Isaac. The Truth and Reconciliation Commission's calls to action 43 and 44 recommend a full implementation of UNDRIP, as well as a national action plan, strategies to accompany the plan, and other measures to achieve the goals of the UN declaration. Do you agree or disagree with these recommendations?

[Thomas Isaac]

My point would be that UNDRIP can play a helpful role in Canada's development of reconciliation with indigenous peoples. What concerns me is any suggestion that a blunt international instrument that has.... If you look globally at states that have actually tried to adopt it in any meaningful way to prevent unilateral action against indigenous rights, you cannot fill a hand with those states.

My point is that we should be proud of where we've gotten this country. We're not done yet by any means, but there's been a lot of work put forward in Canada's unique legal regime. The notion that we can simply adopt an international instrument, to me, doesn't do justice to where we're going as a country given that we have had 70 decisions on section 35 by the highest court in this country in 25 years.

What I'm calling for is a thoughtful, prudent discussion. I think the country has the maturity to be able to have a nuanced discussion, in my respectful view, as opposed to saying that UNDRIP is good and we must adopt it, or that UNDRIP is bad and we must reject it. I don't think it's that simple. That's what concerns me about the bill as it's presently drafted: I think it oversimplifies what this means. This isn't to water down UNDRIP, but it's to make it actually meaningful in Canada. The examples in my submission were on the social and economic side, where I think that as a country we probably have a little bit more room to go.

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

If I cut you off, it's only because my time is short—

[Thomas Isaac]

Sorry.

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

—and this is a long conversation.

One of the things we announced about six weeks ago is a “recognition of rights” exercise, in which were we are going to try to define section 35 rights in full consultation with indigenous nations. I'm not speaking for anybody but myself when I say that I see this as the logical next step to UNDRIP, if it is adopted, which I think it will be.

Do you have any thoughts on that? Is it something that you, as a lawyer, would think is a good thing we're embarking upon?

[Thomas Isaac]

Certainly, one of my recommendations in the Métis report I did with the government as an independent adviser was to develop a rights and recognition framework around Métis section 35 rights. The fact that it's being applied more broadly to indigenous people makes a lot of sense. From my point of view, I think it's a very good initiative.

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

How do you think UNDRIP would affect the Métis nation of Canada?

[Thomas Isaac]

At law, there's a huge question mark. In terms of some of the social and economic, health-related, and education-related aspects of UNDRIP, I suspect there's a lot more to be learned in our country. Otherwise, we will have to take another look at the 30-plus-year legal regime we've developed, which does not fit easily with the blunt, generalized language of UNDRIP. Something is going to have to give.

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

What suggestions would you have for this committee in terms of amendments to Bill C-262 if we were to move forward on this?

[Thomas Isaac]

Well, I think part of this is a policy issue. But from a strictly legal point of view, I think it's proudly acknowledging the legal history that a lot of first nations, Inuit, and Métis people have had a lot to do with. We should ensure that whatever UNDRIP does it's going to be consistent with our case law to date. More on the policy side, maybe we should talk a bit more about the things where as a country we probably have a lot more road to go down, where we don't have 70-plus decisions, and that's on economic well-being, health, education, all Canadians having a basic level of services. Those would be the kinds of things.... I'm not a policy-maker, but that's what I would focus on.

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

Merrell-Ann, I'm wondering if you could comment on something we began a couple of months ago. The Prime Minister made a passionate speech in the House to embark on an exercise to recognize the rights of indigenous nations in Canada.

Can you comment its relation to UNDRIP, or whether this is the right way to be going?

[Merrell-Ann Phare]

I know that announcement was met with some.... Different folks felt differently about it. Not all aboriginal governments support that particular initiative.

However, it works with the non-derogation clause in Bill C-262, which basically says that this bill is not intended to diminish the rights as affirmed in section 35 of the charter. Actually working on a process with indigenous governments to help define what those are.... Right now, we're leaving it up to the courts to define.

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

It would be, and I'm not sure if those words were used, an acknowledgement that it is a full box of rights as opposed to an empty box.

[Merrell-Ann Phare]

Yes. The only concern I would have with that is that things evolve over time, and you would need to ensure that it is not a defined box of rights that stay locked in the year 2018, or whenever it's completed, right?

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

Right.

[Merrell-Ann Phare]

The principle in law of rights, the expression of rights evolving over time, is an important one, and it changes circumstances, so that would be the only real concern I would have.

Negotiating together is the whole idea behind collaborative consent. It's a consent-based mechanism between governments to define the rights you have, and how you're going to work on them together, how they're going to action out. That's the whole point.

[The Chair, Liberal, MaryAnn Mihychuk]

Mrs. McLeod.

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

Thank you, Madam Chair, and thank you to both witnesses who clearly have brought two different perspectives on this particular piece of legislation.

I do not think that anyone at this table is saying that UNDRIP is good or UNDRIP is bad. We all agree that the UN declaration is an important instrument, an important tool, but we're talking about Bill C-262 in the context of Canada.

I listened to Ms. Phare's definition of consent. We also had someone who talked about three different definitions of consent that could apply within Bill C-262, or within how the courts might ultimately interpret consent.

I was on an APTN panel with a New Democrat member just last week. With regard to the Kinder Morgan pipeline, he said that every single first nation impacted by it had to give free, prior, and informed consent from his perspective. That is very different from how Ms. Phare talked about consent. We have first nation witnesses, like Pam Palmater, who have a definition.

Should Parliament determine and have that conversation about free, prior, and informed consent before we actually make a legislative commitment to implementation?

Mr. Isaac.

[Thomas Isaac]

As you heard very briefly in my comments, I believe that these clauses—there are a number of clauses in UNDRIP—that refer to free, prior, and informed consent are very clear on their face. As I've said publicly, consent means consent. The drafters who drafted UNDRIP knew what they were drafting.

I have heard all sorts of commentators say, “Well, it's not a veto.” That's technically true. A veto is somebody making the decision, and then you get to say yes or no to the decision, whereas consent means we've got to be part of the decision-making process.

The key question is, what does it mean if you don't get consent? In my respectful view, UNDRIP's very clear on its face. If you read the business reference guide—I don't know if the committee's had access to this; it's a UN document that's meant to interpret UNDRIP—there are three or four pages on the words “free, prior, and informed consent”. It talks about consent meaning consent. It's exactly what we would all expect the word to mean when you open up a dictionary and look at it, and I say that with respect.

Let's have an honest discussion about that. If we want to define it differently, and we do for the purposes of Canadian law, that's okay. Let's have an expressed discussion about it.

Bolivia's population is 91% indigenous, and that country adopted UNDRIP into its constitution, which I might add can be amended a little bit differently from Canada's, but it stripped out the consent provisions. It raises fundamental questions of governance if it means what it says.

My point to the committee would be that it's okay if we redefine it, but let's have an honest dialogue about what it means.

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

Certainly, from my perspective, having a common understanding of what FPIC means in the context of this legislation is absolutely essential. We don't want courts defining it. We don't want to move ahead with Bill C-262 and then....

I appreciate that Ms. Phare has a perspective, and I certainly think hers is an ideal way of how we should be moving forward together as a country. However, I have to say that I'm watching Kinder Morgan right now and the British Columbia government, the Alberta government, and the federal government, and first nation communities, and I'm not seeing that there isn't a time when sometimes decisions have to be made and that co-operative consent is pretty difficult to achieve.

I wonder if we are setting ourselves up. I remember that the minister said this piece of legislation, perhaps, is a “distraction” from the important work we have to do around breathing life into section 35. She's since backtracked, but she clearly had some reservations at the time. I'll open that up for comments.