Indigenous and Northern Affairs Committee on April 24th, 2018

[The Chair, Liberal, MaryAnn Mihychuk]

I think that MP Tootoo is wrapping up and giving his thanks.

[Hunter Tootoo, Independent, Nunavut, NU]

Yes.

[The Chair, Liberal, MaryAnn Mihychuk]

Yes, you've run out of time.

MP Cathy McLeod, please go ahead.

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

Thank you.

I'm going to spend my few short minutes to Mr. Fox. I did appreciate your comment in terms of the New Afton mine because, of course, we know there has been a good agreement put in place in terms of royalty sharing, benefit agreements, and employment opportunities. Actually, the most fascinating is some of the work they're doing around bat habitat protection and the partnership that they have there.

Clearly, from the mining perspective and the projects like Prosperity and Ajax, they did not have community indigenous support and those projects were turned down. The jurisprudence, I think, is getting pretty clear. I keep going back to the same thing because I'm not yet satisfied with the answers I'm getting.

If we go from the current jurisprudence that we have to the new free, prior, and informed consent, and I'm going to use Kinder Morgan again because it's very close to mind right now, some of the NDP representatives have said that every single community impacted must give consent or it is a veto and cannot go ahead.

From your understanding of this legislation, if they move forward to a new framework that does not consult and accommodate, which for mining essentially means consent, but perhaps for a cross-boundary project means there are times where someone ultimately has to make a decision, are we potentially heading into more litigation and more confusion? Do you have any comments on that?

[Michael Fox]

What we do well is community engagement and partnerships—we really do—but the final decision at the end of the day is with the crown. We enable things, and even when we submit our project description, go through the environmental assessment and all the mitigation tables, and actually show either impact project agreements, at the end of the day, it's still the crown that approves the project.

If they do approve, and a lot of times it's with terms and conditions that add either more costs or work on the part of the proponent to accommodate those terms and conditions made by the crown, it's not the project proponent that decides whether the project is going to go ahead or not. The decision-making is largely left at this point in time with the crown. The proponent really follows the rules of the land, in this case you're saying in B.C.

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

Essentially, if this legislation comes to be, the crown will have a new level of responsibility around the jurisprudence and the commitment that they're making around FPIC around transboundary trends.

I guess you can't speak for how the crown and the legal—

[Michael Fox]

I can tell you that the trend out there is that communities, with the province and probably with the territories—I'm not familiar with the territories and how they work—have co-planning, co-management, and probably shared decision-making.

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

The current jurisprudence is allowing for a very effective regime, and we're getting better and better at it.

[The Chair, Liberal, MaryAnn Mihychuk]

That ends our time for this panel.

We'll take a short break, and then the other panel will be coming together.

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

Madam Chair, while we have a new panel coming in, because we do have a vote at 5:45 and the bells will start at 5:15, I'm just wondering if we can have agreement that we have 10-minute presentations and one round of seven-minute questions. It will be an additional six minutes at the meeting.

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

If we have three presentations....

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

We have three presentations, yes.

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

That takes us to 5:00, and then are you saying three seven-minute questions?

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

Yes, we'll do a full round, one round.

[The Chair, Liberal, MaryAnn Mihychuk]

All right.

[The Chair, Liberal, MaryAnn Mihychuk]

Merci beaucoup. Meegwetch . Thank you for coming.

The same rules apply. You'll get up to 10 minutes, and then we'll go through a round of questions from the MPs.

In the order on the agenda, we're going to start with Jennifer Preston from Canadian Friends Service Committee.

[Jennifer Preston, Program Coordinator, Canadian Friends Service Committee]

Good afternoon. I am the daughter of Sarah Jane and Richard Preston and the mother of Sarah Jane Howe. I was born in the territory of the Leni Lenape, and I spent significant time in my childhood in Cree territory. I now live in traditional Anishinabek and Haudenosaunee territory.

Canadian Friends Service Committee, CFSC, is the justice and peace organization of the Religious Society of Friends, Quakers. As a faith body, Quakers have been working for peace and justice for centuries. Quaker service organizations were awarded the Nobel Peace Prize after the Second World War for our commitment to justice and peace. Quakers are what is called a “historic peace church”. Our peace testimony is at the root of our faith. Peace and justice are interlinked. We cannot be at peace where there is injustice.

I am not indigenous, and I do not represent an indigenous constituency. However, when human rights are violated, we all need to be concerned. When indigenous peoples' human rights are affirmed and promoted, we are all winning. In our view, the UN declaration is a good news story. Bill C-262 is vitally important to non-indigenous people in Canada.

For the past two decades, my professional work has focused deeply on the UN Declaration on the Rights of Indigenous Peoples, first, in the international processes where it was developed and adopted, and then, for the past decade, on implementation. As someone with a long history of experience and expertise with the declaration, I have published extensively on the subject, including co-editing a book entitled, The UN Declaration on the Rights of Indigenous Peoples : Triumph, Hope, and Action. I am often invited to present on the declaration to diverse audiences and am delighted to be here today.

CFSC fully supports Bill C-262, and we urge all members of Parliament to adopt it in a non-partisan manner. I gave much thought about what I should share this afternoon. You have heard already from many witnesses, and I don't wish to duplicate the efforts of others. At the same time, there are some elements surrounding Bill C-262 that are worth repeating. Indigenous peoples went to the UN to negotiate the declaration because they did not have justice in a domestic context. This is the most discussed human rights instrument in the history of the UN, and Canada played a significant role. Indigenous peoples did this work to ensure that changes would occur on the ground.

In the decade since the UN General Assembly's adoption, there have been pockets of interesting work on implementation accomplished mainly by indigenous peoples themselves, but it is overwhelmingly evident to those of us who work intimately with the declaration that we need the national legislative framework that Bill C-262 provides.

For many faith bodies, including Quakers, the work of the Truth and Reconciliation Commission was critically important, and it created a watershed moment in this country. As you know, the Indian residential school system was part of the destructive forces of the colonization of Canada. The exemplary work of the TRC informs us of both the journey and the legacy of colonization.

What did we learn? The truth. We learned about the sexual, physical, and spiritual abuse. We learned about the widespread dispossession of land. We learned about the attempted destruction of traditional governance and legal structures; religious conversion; and attempts at forced assimilation, including the prohibition of languages, traditional culture, and spiritual practices. We learned about the racist and sexist Indian Act, much of which is still in effect. We learned about the secondary consequences associated with loss of culture, language, and identity, including intergenerational trauma. The TRC and the former chief justice of the Supreme Court of Canada, Beverley McLachlin, concluded that this constituted cultural genocide.

What does the TRC suggest to move forward now? What is reconciliation? I'm going to read a quote from a report released by the TRC entitled “What We Have Learned: Principles of Truth and Reconciliation”:

...“reconciliation” is about establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country. For that to happen, there has to be awareness of the past, acknowledgement of the harm...atonement for the causes, and action to change behaviour.

I very much concur with call to action 43 that the United Nations Declaration on the Rights of Indigenous Peoples is the framework for reconciliation. It can also be described as the blueprint. Former UN secretary-general Ban Ki-moon called the declaration the “road map” for reconciliation. The TRC very skilfully wove the UN declaration through their work. Sixteen calls to action refer specifically to the declaration. Any attempts to undermine the UN declaration are also striking at reconciliation.

This brings me to Bill C-262. This bill creates a legislative framework to ensure that we do indeed implement the UN declaration, not just talk about it.

The TRC concluded that a refusal “to respect the rights and remedies in the declaration will serve to further aggravate the legacy of residential schools, and will constitute a barrier to progress towards reconciliation”.

Bill C-262 offers Canada a crucial opportunity to move from a colonial framework that dispossessed indigenous peoples to become a nation-state that acknowledges the harm, atones for the causes, and commits to change.

Bill C-262 provides the federal government with the framework to create a paradigm shift that we so urgently need to move away from colonization.

This week, perhaps later today, the national leaders of many churches in Canada, including those that ran residential schools, are writing to leaders of all political parties to urge non-partisan support for Bill C-262. Many faith bodies have been actively championing the declaration and Bill C-262. Why? As people of faith we are committed to peace and justice. We recognize the injustice we have been a part of, and we are committed to change. We are committed to the deconstruction of power structures that have and continue to oppress indigenous peoples.

Change can be difficult or even scary. Of course, I am aware of the fear that has been generated around both the declaration and this bill. My analysis is that this fear is rooted into hanging onto colonial constructs of power and perpetuating domination and exploitation.

Last spring when I was on a speaking tour in northern British Columbia on both the declaration and on FPIC, I gave an interview to CBC North. The interview included questions around the fear, and finally I said, “No, Chicken Little, the sky is not falling.” Clearly I was being glib, but the point is we have to let go of these unfounded fears. We need to embrace implementing the declaration through Bill C-262 as something we can all be proud of as we move forward into a new reality that's based on a contemporary human rights framework and not on colonialism.

Members of this committee have questioned other witnesses about FPIC, and I'm not going to go into detail on that. I am aware that Paul Joffe will be covering that later this afternoon. However, I wish to reiterate that FPIC was not created in the declaration; it is well established in international law, and Canada already has an affirmative legal obligation to respect FPIC.

I do have a possible addition to the preamble to further entrench the importance of reconciliation. The text could be something as follows:

Whereas, as concluded by Canada's Truth and Reconciliation Commission, the declaration provides the necessary principles, norms, and standards for reconciliation to flourish in a 21st century Canada.

Senator Murray Sinclair informed us that truth was hard and reconciliation would be harder. At the closing events of the TRC, he also instructed all of us, “We have described for you a mountain. We have shown you a path to the top. We call upon you to do the climbing.”

Over the past two decades occasionally people asked me why Quakers are so committed to this work. The answer is simple. There is no peace without justice.

[The Chair, Liberal, MaryAnn Mihychuk]

That's very nice.

The second presenter is Pat Van Horne from the United Steelworkers.

Go ahead, for up to 10 minutes. Thank you.

[Pat Van Horne, Legislative Representative, National Office, United Steelworkers]

Thank you very much.

I want to thank you for inviting the United Steelworkers to speak with you today.

My name is Pat Van Horne. I'm the legislative representative for the union, and I'm based here in Ottawa. I've also brought with me, in the peanut gallery, a number of our members who are here this week talking to MPs on another important issue, which is retirement security, but we won't talk about that now. I'm also here on behalf of our national director Ken Neumann, who could not join me today.

The United Steelworkers represent over 180,000 women and men employed in all sectors of the Canadian economy right across the country. Many of our members are indigenous peoples—first nations, Métis, and Inuit. Many are employed, for example, by Cameco, at the uranium mines in Saskatchewan; the Vale nickel mines in Voisey's Bay, Labrador; Glencore's Raglan Mine in northern Quebec; in logging and sawmills from Ontario to B.C.; at the Frontier School Division in northern Manitoba; and many other places.

USW has a long history of struggle for social justice and human rights for working people, their families, and their communities. Today, along with many Canadian organizations and institutions, which include unions, we are taking active steps to work toward reconciliation and full recognition of the rights of indigenous people.

Our support for Bill C-262 is based on an official policy position adopted by USW members in 2016, and it reflects their deep concern as citizens, co-workers, and community members from all walks of life in all parts of the country, over the unjust and racist history of Canada's treatment of indigenous peoples.

We also have within our union an aboriginal people's committee, which meets regularly and brings issues to the larger union.

The adoption of Bill C-262 would be a powerful affirmation of Canadians' collective desire to do better and engage in genuine reconciliation with first peoples. More than that, Bill C-262 would provide a practical, rights-based path that Canada must follow in order to ensure that reconciliation is comprehensive, far-reaching, and uncovers and redresses the colonial legacy embedded in Canada's legal, economic, political, and other systems, which, I dare say, includes our economic relationships with employers.

The rights-based approach of Bill C-262 is a key part of efforts to address crisis in many indigenous communities and among many indigenous people in Canada's urban areas. This crisis includes, as has been mentioned many times, inadequate education, health, child welfare, and housing. It includes gender-based violence, poverty, and the loss of language and cultural identity. These are big jobs to do, but I think Canadians are up for it, and this bill would help.

If properly implemented, Bill C-262 would help ensure that there is a comprehensive, consistent legal framework based in international law within which indigenous communities can work with private, non-state actors to arrive at equitable arrangements for resource and community development. In fact, the representative from PDAC alluded to that in his presentation.

The USW would never accept a mine design that was unsafe. The USW would never accept a mining operation based on the harassment or exploitation of workers and their families, or a mine constructed without environmental safeguards preventing the poisoning of local communities. Health and safety has been one of our major thrusts throughout our history and particularly over the last 25 years since the Westray mine explosion. Likewise, the USW can no longer accept mines built without consultation and participation of indigenous rights-holders in decision-making, in violation of UNDRIP. That, of course, means free, prior, and informed consent, among other things.

The USW is not concerned that the adoption of Bill C-262 would somehow paralyze resource development in Canada. On the contrary, the implementation of Bill C-262 would help ensure that the Canadian legal system offers a clearer framework for balancing rights and a more certain basis on which resource development decisions can be made. In our experience, when indigenous communities feel secure in their rights, they are quite prepared to entertain appropriate proposals, including partnership for resource development, collective bargaining, and other issues.

My final comment is simply that processes like this one, Bill C-262, to make human rights meaningful in a relationship fraught with racism and exploitation, in a framework of colonialism, will help organizations like the United Steelworkers to become instruments of reconciliation, where solidarity is the guiding principle.

Thank you for your attention, and I'm happy to answer any questions.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Now we go to our last presenter. We're glad to have you. You have up to 10 minutes to present. Go ahead.

[Paul Joffe, Lawyer, As an Individual]

Thank you very much.

Good afternoon, honourable committee members. I'm pleased to be on the unceded traditional territory of the Algonquin people and to have this opportunity to appear before this distinguished committee.

I commend the committee for examining Bill C-262, the short title of which is the United Nations Declaration on the Rights of Indigenous Peoples act.

A strong bill, when adopted, will make a significant contribution to national reconciliation and the Truth and Reconciliation Commission's calls to action. In particular, I wish to acknowledge the determination of MP Romeo Saganash in bringing Bill C-262 to this critical juncture. His accomplishments to date are all the more significant since he is the only indigenous MP who is a residential school survivor.

Let's begin with the living tree doctrine. Aboriginal rights affirmed in section 35 of the Constitution Act, 1982 are subject to progressive interpretation. This is consistent with the living tree doctrine that applies to Canada's Constitution. As decided by Canada's highest court in 1984 in Hunter et al. v. Southam:

Once enacted, [the Constitution's] provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.

The UN declaration constitutes a new social, political, and historical reality, a consensus human rights instrument that elaborates on the rights of indigenous peoples globally. As the Supreme Court indicated in Reference re Same-Sex Marriage, “A large and liberal, or progressive, interpretation ensures the continued relevance and, indeed, legitimacy of Canada’s constituting document.”

My next point emphasizes that indigenous peoples' rights are human rights. Mr. Saganash has repeatedly emphasized in Parliament and in this committee that indigenous peoples' rights are human rights. This crucial characterization is beyond question. Successive federal governments, both Conservative and Liberal, have confirmed to the United Nations that the aboriginal and treaty rights of indigenous peoples in Canada are human rights in Canada's domestic legal system. For over 35 years, indigenous peoples' inherent rights have been addressed within the UN human rights system. Therefore, all governments, business entities, academics, and others in Canada should recognize the human rights quality of indigenous peoples' rights.

In Tsilhqot’in Nation v. British Columbia from 2014, the Supreme Court of Canada underlined that the Canadian “Charter forms Part I of the Constitution Act, 1982, and the guarantee of Aboriginal rights forms Part II.” The court went on to say, “Parts I and II are sister provisions, both operating to limit governmental powers, whether federal or provincial.”

In the 1987 Reference Re Public Service Employee Relations Act case, which was in Alberta, chief justice Brian Dickson emphasized that declarations and other sources of international human rights law “must...be relevant and persuasive sources for interpretation of the [Canadian] Charter's provisions.” In other words, if international declarations are being applied to interpret human rights in part I of the Constitution Act, 1982, then the same must be true for indigenous people's human rights in part II.

Thus it is essential that subclause 2(2) of Bill C-262 affirm:

Nothing in this Act is to be construed as delaying the application of the United Nations Declaration on the Rights of Indigenous Peoples in Canadian law.

As confirmed in Canadian and international law, indigenous peoples' rights are inherent or pre-existing. In the absence of subclause 2(2), some people might claim that the rights in the UN declaration would not apply until the collaborative processes in clauses 4 and 5 of the bill determined the nature and scope of such rights.

Now let's turn to the important issue of consent versus veto. FPIC, or free, prior, and informed consent, is not created by the UN declaration. The declaration affirms and elaborates upon existing rights; it does not create any new rights. The term “veto” is not used in the UN declaration. Veto implies an absolute right, that is, no taking into account the facts and law in each case. There is no balancing of rights. This is neither the intent nor interpretation of the UN declaration, which includes some of the most comprehensive balancing provisions in any human rights instrument, especially article 46(3) which indigenous representatives negotiated with Canada.

Consent is an essential element of the right of all peoples to self-determination. This right is included in identical article 1 of the two international human rights covenants that Canada ratified in May 1976. FPIC and international law have the same meaning as consent in Canadian law. In both cases, if there is duress, there is no valid consent. The same is true if consent is sought only after a project is initiated or if the information provided is inadequate or misrepresented.

At the international level, the application of FPIC to indigenous peoples is supported by the UN General Assembly, the UN Secretary-General, the Office of the High Commissioner for Human Rights, UN treaty bodies, specialized agencies, UN special rapporteurs, the UN Permanent Forum on Indigenous Issues, and the UN Expert Mechanism on the Rights of Indigenous Peoples. None of these entities, bodies, or mechanisms describe FPIC as a veto.

The same is true for the Inter-American Court of Human Rights and the African Commission on Human and Peoples' Rights. Consent must include the option of withholding consent. This conclusion clearly makes sense. It would be absurd to conclude that indigenous peoples have the right to say yes, but not the right to say no, even in the most damaging circumstances.

With a view to ensuring co-operative and harmonious relations, I respectfully propose three amendments to Bill C-262 for your consideration.

With regard to the first amendment, the current title of Bill C-262 does not fully reflect all of the matters addressed. Thus, I propose the title, “An Act to implement the United Nations Declaration on the Rights of Indigenous Peoples and promote reconciliation”.

My next two amendments would fit nicely at the very beginning of the preamble.

The following new paragraph reflects the wording of both the UN Expert Mechanism on the Rights of Indigenous Peoples and the UN Permanent Forum on Indigenous Issues, and would read as follows: “Whereas implementation of the United Nations Declaration on the Rights of Indigenous Peoples constitutes a principled framework for justice, reconciliation, healing, and peace;”.

Finally, my third amendment just reflects the 18th preambular paragraph of the UN Declaration, and reads as follows: “Whereas affirmation of the rights of Indigenous Peoples in that Declaration will enhance harmonious and cooperative relations between Canada and Indigenous peoples;”.

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

That was perfect timing.

Questioning now goes to MP Anandasangaree.

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

Thank you very much to the panel for being here.

Mr. Joffe, your name has come up over and over again with respect to UNDRIP, so we're quite honoured to have all of you here sharing your knowledge and wisdom.

I want to share my time with MP Vandal, but I do want to talk to you about one aspect of your presentation, and that is whether we need to have Bill C-262 in order for UNDRIP to be applicable in Canadian law. I know you suggested that international conventions and declarations essentially are part of domestic law. In this particular case, I would like to get your position as to whether we even need this.

The second part of this is your views with respect to the recognition of rights framework that was introduced several weeks ago by our government.

[Paul Joffe]

I realize I have a little bit of time.

Yes, it's true. The Supreme Court has said, as I said, in 1987 and since then they've affirmed that international declarations are relevant and persuasive sources for interpreting human rights in Canada. So there's no question. But it goes farther than that.

First of all, indigenous governments, the federal or provincial governments, and all the human rights commissions in Canada under CASHRA, which is the umbrella group, support the UN declaration. People are free to use the declaration.

The benefit of having legislation is, first of all, that this legislation creates collaborative processes. That's always been a problem. When it isn't collaborative and legislators do things alone, unfortunately throughout Canada history has shown that there's been colonialism, there hasn't been an understanding, the problems have been entrenched in legislation, and we haven't gotten anywhere.

In terms of the recognition and rights framework—to be very quick—we'll have to see what that includes, but of course it fits with Romeo's bill. It's another step.

The way you implement the UN declaration in Canada, though, is not just to adopt Bill C-262. It's to integrate it in your various pieces of legislation. That way no one can say there's uncertainty. Let's say you're dealing with indigenous languages. If you fit it into, let's say, the preamble, the reference, or whatever, and show how it's going to be used and how it's going to reinforce the objectives of all legislators, that would help. It should be done with the proposed impact assessment act, Bill C-69. It should be done with Bill C-57. That way you not only create consistency but you also avoid uncertainty and meet the legislators...whatever.

I don't want to take their time.

Thank you.

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

My question would be around free, prior and informed consent.

My question is for Pat Van Horne.

How do you measure consent for, let's say, a mining project?