Indigenous and Northern Affairs Committee on April 23rd, 2018

[Dr. Sheryl Lightfoot]

I think FPIC is probably one of the most formidable challenges of this entire piece of direction and legislation. I think the central feature to remember is that consent is a critical foundational piece of self-determination for all peoples, not just indigenous peoples. The entire system and framework of democratic institutions lies on the issue of consent of the governed. I think to deny that to indigenous peoples is unconscionable in this country that we call Canada, which we consider to be a democracy.

The question is how to get there and what sort of systems need to be designed so that we know when we have consent and when we don't, because that is one of the most contested issues in all sectors and all areas of this issue.

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

Do you think it's necessary to have that defined in the black letter of the law within Bill C-262 before you even move forward with it?

[Dr. Sheryl Lightfoot]

I don't think so. I agree with you that they are not mutually exclusive. I think this legislation tells us that we need to establish systems and institutions that will do that. That means working together with indigenous peoples to discuss and to find out how we know when we have consent.

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

And the black letter of the law will evolve with it at the same time you evolve this nation-to-nation relationship.

[Dr. Sheryl Lightfoot]

It will evolve with it, just as every democratic institution in this country has evolved.

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

It was mentioned earlier that the FPT tables need to be developed. So too do they in the nation-to-nation relationship.

[Dr. Sheryl Lightfoot]

That's correct.

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

I apologize. I kind of led that in a different direction, but if you'd like to comment on that as well, it would be greatly appreciated, Sharon and then Jessica.

[Chief Sharon Stinson Henry]

Okay, thank you.

The board feels there is already a lot of jurisprudence in Canada—and I'm not a lawyer, so if I say something that I ought not to, please forgive me—and internationally with regard to FPIC. Quite frankly, as a former chief, I found that the worst thing any leader could do was not to consult with their constituents, and in our case, our membership, our citizens.

I feel that you have to start somewhere with this bill. With all due respect to the former speakers, we can debate this ad nauseam and not get anywhere. I think we have to keep it simple. Just listening to Jessica here, why do we have to make things so formal and complicated? I also lead my community in a land claim process. My goodness, it's unbelievable. The government tends to get so nervous, with all due respect. You have to respond to your taxpayers, too, and I may be off topic a little bit, but I'm just saying there are rules and there are laws, but we need to talk with each other. That's all the board is saying: let's talk with each other, get this moving, and don't put up roadblocks or move the goal posts, or we'll never get it done.

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

Thank you.

I don't want to run out of time. Jessica, could you please comment if you have anything different to add. Also I put it out there that, if you have any amendments, you could recommend them as well.

[Jessica Bolduc]

To me, your question makes me think about the intention behind naming that as a challenge or wanting to dig deep into FPIC at this stage of the bill. If the intention were to move things forward in a collaborative process that is outlined in UNDRIP, then we would be having a different kind of conversation. To me, it feels like that's something that's being used to stall the process, and that's important.

I think the other piece to acknowledge is that, when working with “emergents” or our youth, as we absolutely are doing right now, we venture a little bit into the unknown—although, as Sharon said, there are precedents that are set with how FPIC can be worked in a good way. To try to create something so rigid in the beginning of something that's being developed can collapse the entire process in my opinion. That's what I offer. I don't have any suggestions for an amendment.

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

Okay.

Sheryl, do you want to respond too?

[The Chair, Liberal, MaryAnn Mihychuk]

You have 15 seconds.

[Dr. Sheryl Lightfoot]

I recommend no amendments. I think the beauty of this legislation is its very simplicity. It sets direction, it sets a tone, and it sets an intention. It provides a specific mechanism so that the human rights obligations of Canada can be met, which they are not right now, if I can emphasize it again. It sets out a review process, saying that all future laws need to be compliant with the UN declaration; it sets up a reporting mechanism; and it necessitates national action plans. This immediately sets out a framework to align Canada's behaviour with international expectations.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Questioning now moves to MP Kevin Waugh.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Thank you to all three for coming here this afternoon.

You're right, it's framework, but legislation needs clarity. We haven't provided advice on how consent is defined. We have asked for it to be clearly defined in this legislation for clarity. We've asked the Department of Justice to give us a definition. We are still waiting for that. This is to keep FPIC out of court. We need to get this piece of legislation, this law. It will be law when we pass this, so we need to clarify it. The purpose of our clarifying it is to streamline this process, not to stall it. To ensure that everyone is clear on this process, legislation has to be clear. We're waiting for that from the Department of Justice, and I just remind the clerk of that.

We have spent enough money at the Supreme Court over the years on clarification, so when we bring a bill like this forward, it is our duty as members of Parliament to see that it is done right. It is my belief that this is one of many committees that should study this bill. I just mentioned Justice. You're talking economic development. Well, I think we should have a study of that. In my opinion, all these discussions have to come forward before we go forward with this legislation.

Anyway, we'll start with your thoughts on what I just said, Sheryl, because you did make a number of statements here that I want to clarify.

[Dr. Sheryl Lightfoot]

If you or the Department of Justice need some guidance on what free, prior, and informed consent means, I think we can appeal to the United Nations, which has done some work on this and has a two-pager exactly on what that means.

How that is to be worked out within the Canadian domestic framework is a subject that should be done in collaboration between indigenous communities and the government. I encourage that next step. It's also suggested by the United Nations.

In terms of getting absolute clarity on each piece of legislation, I dare say even section 35 wasn't completely clear in 1982 when it was adopted. Law and policy are an ongoing process of communication, collaboration, negotiation, and sometimes court cases. That's a natural and a given.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

We're trying to avoid that, right?

[Dr. Sheryl Lightfoot]

This legislation will probably end up avoiding a number of court cases and conflicts, I would expect, because once you develop a framework, then you give a legislative avenue or regulatory avenue, which will actually reduce conflict in the long run.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Sharon, whom do you speak for? You say it's the National Indigenous Economic Development Board. Give us some insight about that board. How many are on it? You say you have representation from all the territories and provinces. Maybe fill us in, because you've made some statements here that I'm going to ask you about after you tell us. Are you a national spokes—

[Chief Sharon Stinson Henry]

We're a national board—

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

But who do you speak for, everybody?

[Chief Sharon Stinson Henry]

No. We are an advisory board to the federal government, and we are appointed through an Order in Council. There are currently 10 members on the board. Some are being replaced now as we speak. It's a rolling board, so people come and go. In fact, I'm finishing up my term shortly. We do have research done. We've done a lot of work.

To look at one of our reports, you simply have to go online. We have a website. All of the reports are there and easily accessible. One is “Reconciliation: Moving Canada's economy by $27.7 billion”. We've recommended to the Government of Canada that it must close the gaps that exist for indigenous peoples. We are underfunded for education.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

I totally agree.

[Chief Sharon Stinson Henry]

If we have those gaps filled, the economic outcomes would be beneficial, not just to indigenous peoples but to all Canadians.