Indigenous and Northern Affairs Committee on April 23rd, 2018

[Thomas Isaac]

Look, from my point of view, with regard to the other witness and collaborative decision-making, I have my own views about that. I think those are the kinds of ideas that might be very fruitful, but that's different from obtaining free, prior, and informed consent before getting a decision. Again, I would just repeat what I guess I've already said.

Remember, again, Desmond Tutu talks about this in South Africa. Core to reconciliation is truth. It doesn't mean that we're against UNDRIP by saying let's have an honest dialogue about what FPIC means in Canada, given that no other state on the planet has a constitutional regime to protect indigenous rights against unilateral state action. I think it's a fair question.

I think I agree with you that, if I were to focus on one element of UNDRIP that's probably worthy of further discussion, it's FPIC in the context of Canada, but I don't want to make it sound like Canada's the odd one out in the world. In fact, we're the odd one in, in protecting indigenous rights against unilateral state action.

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

I think you raise an important point in the context of the Daniels decision. I look at the article around laws of general application, and I still struggle. I'm a practical person, and I believe that if you have legislation, you should follow through on your commitments. Canada needs to follow through. We've done a lot of things where we have not followed through on our commitments. I think we need to be following through on our commitments if we have legislation.

I struggle. If you have a commitment to consultation, or free, prior, and informed consent around laws of general application, where do you go for that in a country like Canada? How do you even manage that particular piece of the issue?

[The Chair, Liberal, MaryAnn Mihychuk]

You only have 10 seconds left.

[Merrell-Ann Phare]

I just want to point out that the Tsilhqot’in decision defined consent. It said that it's required regarding titled lands, point blank, and then, if you don't get it, you have to do the justification test. Consent is already defined in law.

UNDRIP just says, “States shall consult and cooperate in good faith with the indigenous peoples concerned...in order to achieve their consent.”

It's framed within Canadian law already, and Canadian law's been clear about what consent is.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Questioning now moves to MP Romeo Saganash.

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

Thank you, Madame Chair.

Thank you to both witnesses this afternoon. I'm the sponsor of this bill. I've also participated in the 23 years this process lasted, in terms of negotiations and drafting of the UN declaration. I can attest to a lot of the comments you've made or questions you've raised today.

I want to start with you, Thomas. Both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights talk about, in their first articles, the right to self-determination of peoples. Do you consider that right a human right?

[Thomas Isaac]

Absolutely, and both of those covenants are legally adopted in Canada, and so is the declaration.

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

So the right under article 3 of the UN Declaration on the Rights of Indigenous Peoples is also a human right?

[Thomas Isaac]

As it's framed, as a lawyer I have to comment on the fact that the declaration at international law is not similar to the covenants. The covenants—

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

I agree.

[Thomas Isaac]

Yes. It's framed in a similar way, but it's a material difference, I would say, at law. Yes, it's framed similarly.

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

But the right of self-determination—

[Thomas Isaac]

Absolutely.

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

—is a human right.

[Thomas Isaac]

Yes, I would agree.

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

In that sense, I'm puzzled or troubled by the fact that this is a human right that belongs to indigenous peoples, the right of self-determination, and you're suggesting to this committee that we should be careful about enshrining that human right, which already applies, in my view. That's what Bill C-262 confirms. It already applies to Canada.

In fact, the human rights committee back in 1999 confirmed that the right to self-determination under both covenants applies to indigenous peoples in Canada. That was in 1999, way before the UN Declaration on the Rights of Indigenous Peoples was adopted by the UN General Assembly.

Why should we—us, as indigenous people—wait and be careful about how this right is going to be applied in this country?

[Thomas Isaac]

Thank you, Member. I would agree about your framing of the right. My comments today were on Bill C-262 in their entirety. If it was simply about the right of self-determination, I'm looking at UNDRIP as a whole and having it apply holus-bolus to Canadian law without any particular guidance. That's the level of my concerns.

In no way whatsoever am I picking on any particular indigenous right—in fact, quite the contrary. I would argue that this in fact would be a good thing to look at, but to just sort of bluntly bring in UNDRIP without understanding how it's going to affect Canadian law—

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

You have used that word on a couple of occasions now, at least six times since you started, and I totally disagree with that characterization, because it's not a blunt international human rights instrument. I think it's the international human rights instrument that took the longest to negotiate and draft. In fact, it took us over 23 years to negotiate and draft this instrument, so it's not just a blunt instrument that came about. I totally disagree with that.

In fact, yes, there are covenants, conventions, and international treaties that don't necessarily have the same status as declarations. I agree with you on that, but that does not mean that declarations have legal effect in law in this country. Already, back in 1989, the Supreme Court confirmed a decision on a human rights case that declarations in international law are relevant and persuasive sources to interpret domestic human rights law. In Tsilhqot'in again, in their decision, it was even confirmed that the Charter of Rights and Freedoms that we find in part I of our Constitution and the section 35 rights that we find in part II of our Constitution are sister provisions.

That's the law as we speak today. I think it would be an error for this country to delay the application. It's an error for this country to even debate the human rights of indigenous peoples in this country.

Ms. Phare, I think I have two minutes. You specifically focused on FPIC. You talked about the collaborative consent your group has worked on, which is very important. I think Bill C-262 is a collaborative proposition that I'm making. I know that in law, even if the jurisdictions between federal and the provinces are there in our Constitution, the Supreme Court has confirmed they're not absolute, because there are aboriginal rights involved every time. Do you see a relation between FPIC, a veto, and a right to self-determination?

[Merrell-Ann Phare]

This is why we came up and framed things as collaborative consent, which is consent between governments. I think the right to self-determination is the right of indigenous nations to define their governments and to participate in setting the direction of Canada as governments. It shouldn't be federal and provincial governments doing that for indigenous nations. However, indigenous nations need to participate in the structures that we have here also. That's the “bending the beams” idea.

I think we get really hung up on project-level type decisions, such as on pipelines, when the real problem is that indigenous nations haven't been involved in setting the whole “what are we doing with energy” policy in this country. Which direction do we want to go with that? What is our broad perspective? What are the directions, as leaders, that we want to take on climate change? These are questions of the self-determination of our nation. If indigenous people were at that table setting that, our direction might shift, but it might be a fairer direction that indigenous nations.... At the end of the day, on the project-based decisions, you may still have consent discussions. First nations may say no. Other indigenous nations may say no. There will be a process clearly defined in section 35 law about what happens in that case. The upstream discussion, I think, is where the real magic is, and it's what UNDRIP is intended to create the tables for.

[The Chair, Liberal, MaryAnn Mihychuk]

We've run out of time.

We're going to move to the next set of questions, which come from MP Gary Anandasangaree.

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

Thank you, Madam Chair.

Thank you to the panel for being here.

As this is my first occasion to speak after the incident in Toronto, I want to express my deepest sympathies to the victims at Yonge and Finch. It's an area that I'm very familiar with, as I spend a lot of time there.

With regard to the question of reconciliation, Mr. Isaac, you appear to have a fairly different view of reconciliation from, say, the Truth and Reconciliation Commission. I know that in calls to action 43 and 44, the TRC itself called for full implementation of UNDRIP. You say that Bill C-262 doesn't in fact talk about reconciliation, and I would say that the fact that Bill C-262 is coming in is what this is about.

You also referred to Desmond Tutu as saying that the core element of reconciliation is truth. I think perhaps there are different viewpoints on this, but I really want to get to the key point of what you think reconciliation means in your words. Surely it's not the status quo. Surely it's not being one of four countries to abstain in Geneva, or denying that we even need to implement UNDRIP. Surely reconciliation means more than what we've had in the last 10 years. In your mind, what does that mean to you?

[Thomas Isaac]

We have guidance from the court to date. I guess, more generally, reconciliation in part for me means indigenous peoples having valiant protection of their rights, having access to services like all other Canadians, being respected for being indigenous, and being able to exercise their rights, culture, and traditions freely in pursuit of their self-determination in Canada.

I have a very broad view of reconciliation. My point about reconciliation in Bill C-262 is that we, in my view, are at a point in our country where we can have a nuanced conversation to ensure that we continue moving forward. My comments were not against UNDRIP generally, but quite the contrary.

My comments were that Bill C-262 as presently drafted, for example, refers to the objectives of UNDRIP. As a lawyer, I want to know what the objectives are. I think reconciliation deserves that, quite frankly. I think indigenous peoples deserve to know exactly what objectives government, the Parliament of Canada, is signing on to, and I mean that very genuinely. We're at that stage in our development and I worry that rhetoric gets in the way of reconciliation. I'm not at all against the recommendations of from the Truth and Reconciliation Commission. My issue is with how you implement them in a thoughtful, prudent way.

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

Ms. Phare, when the Constitution Act came in in 1981, what was the prevalent thinking with respect to section 35 rights? Did we have the same arguments that Mr. Isaac is talking about to us today, that these are scary, undefined, or ambiguous?

[Thomas Isaac]

No.

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

Did we have that kind of viewpoint at that point in 1981?