Indigenous and Northern Affairs Committee on April 24th, 2018

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

Is it all about funding? What would this bill do to improve this?

[Paul-Matthieu Grondin]

It's largely about funding. That's very obvious when it comes to our justice system in Quebec. However, this bill clearly changes the perspective, how the law is viewed. Yes, funding needs to be discussed, but in our case, this gives us an opportunity to talk about Quebec and the legal implications of the declaration, of course. In terms of how we look at each of our laws, we believe indigenous law represents a very significant shift in paradigm. Let's be clear about that.

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

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Questioning now moves to MP Romeo Saganash.

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

Thank you, Madam Chair.

I'd also like to thank the witnesses who are with us this afternoon.

I'm going to start with the representatives from the Barreau du Québec, and I'm going to speak in French. When I get up in the morning and I speak French first, I tend to keep speaking French all day long. It's cognitive.

You said an international declaration was not on a par with an international convention or treaty, and you are absolutely right. Be that as it may, I'd like to know whether international declarations on human rights have any legal implications, in your view.

[Francis Walsh]

The Barreau is of the view that the declaration, and declarations in general, have legal implications and interpretive value. Consider the Supreme Court of Canada's decision in Baker v. Canada. The court indicated that declarations have interpretive value in the context of Canadian law. That has some significance. Although the Barreau has not done a full analysis of the declaration, we maintain that some of its provisions could fall under the scope of customary international law. With that in mind, the Barreau is of the view that those provisions already carry some legal weight in Canada. That is the Barreau's position on the matter.

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

I very much appreciate your answer and I share your view.

In one of his decisions, a former chief justice of the Supreme Court, Brian Dickson, stated—back in 1989, I believe—that declarations were pertinent and compelling when interpreting a country's laws.

Mr. Grondin, you talked about the costs of implementing the declaration. I tried to find research dating back to when Canada was considering adopting the Canadian Charter of Rights and Freedoms and incorporating it into the Constitution. I didn't find any studies that outlined the costs of implementing the charter in Canada.

Are you familiar with any studies on the subject?

To my mind, the UN Declaration on the Rights of Indigenous Peoples is an instrument for the protection of human rights.

Should we put a price tag on respecting those rights?

[Paul-Matthieu Grondin]

No. I want to be perfectly clear, Mr. Saganash. What the Barreau du Québec is saying is that funding should not be the issue that underpins the declaration's adoption. I understand exactly what you are getting at. My answer to your question is no. We are not aware of any such studies. They may be out there, but we aren't aware of any.

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

Mr. Fox, you talked about partnerships and the need for clarity in the implementation of the UN Declaration on the Rights of Indigenous Peoples. I've taken your points very well. I think it's important to have that.

A prime example in this country is northern Quebec. Since 1975 when we signed the James Bay and Northern Quebec Agreement, the Cree have signed, with your industry and others, over 80 agreements. Why did that happen? In my view it's the fact that, with the James Bay and Northern Quebec Agreement, we set the rules clearly for everybody. If they want to develop in northern Quebec, there are rules that they have to abide by.

Do you think that Bill C-262 would have the same effect?

[Michael Fox]

That's a good question. We live with divided constitutional powers and so I think part of the deep collaboration that allowed that was your province and the federal government and your people. You probably need that deep collaboration, and deep alignment and deep consensus in areas across Canada as well. That was, again, project-triggered, the hydro site. I think it's a positive hypothetical scenario that if this did that and allowed the clarity and projects to flourish like it did in the James Bay agreement, I would applaud that. But, as I said, deep strategic alignment around that would be required by all parties. That's the best answer I can give you on that.

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

You mentioned one of the projects in northern Quebec, Éléonore, which is in my riding. I think one of the things that should be raised in that respect is the fact that when the company came into northern Quebec they had this 500-page document called the James Bay and Northern Quebec Agreement, a constitutional document, and they knew how to go about it. Similarly to the UN declaration, the James Bay and Northern Quebec Agreement is a partnership agreement and it forges those partnerships that you talked about.

Thank you for your presentation and for your support for this bill. Similarly to, le Barreau du Québec, they did support the previous bill that I presented in the previous Parliament.

Francyne, in your presentation you talk about the security of the most vulnerable in our society: the youth, the elders and of course, the women. The UN declaration is said to be the minimum standards for the dignity, well-being, and survival of indigenous peoples. Do you think that we should also add the word “security” to those three principles?

[The Chair, Liberal, MaryAnn Mihychuk]

Before you answer, I'd just like to remind MPs to be cognizant of the time.

MP Saganash, you know that you have gone over and I want to hear the answer so I hope that the committee is going to be somewhat tolerant.

Give your answer please.

[Francyne Joe]

The short and sweet answer is yes. We'll submit further information regarding that answer after this presentation.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you. We're all set on an agreement of time and I don't want to cheat anybody else or cut into their time.

Now the questioning goes to MP T.J. Harvey.

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

Thank you, Madam Chair.

Thank you to all the witnesses for being here with us today. We've had a broad range of perspectives from a broad range of viewpoints throughout this study.

I'm going to start with Mr. Fox and Ms. Williams.

PDAC is an organization that has led on this file continually for a long time and has an outstanding reputation within the natural resources sector in Canada as a result. I'm wondering if you could elaborate on some of the key advantages that other industries, especially in the natural resources sector, could garner from the implementation of Bill C-262, and how that could positively affect the way they do business in the years to come, in other words, how they can leverage it as a strategic advantage.

[Michael Fox]

All we can say is that we're leaders on community engagement and negotiations, but it's built on relationships. Relationship building and engagement are what build the foundation for project success. We and other industry associations try to gather their insights and best practices, and offer guidance to their members. Whether that's our membership or forestry or mining or pipeline, they all have their members. They are engaged in very specific types of projects, which have different environmental footprints and effects. They do their best to offer their best practice based on the type of activity they're proposing.

That's what we've been doing for a while, as have other industry associations. Again, every sector is different, and every project is different. We can only offer our best guidance to our members when it comes to community engagement and engagement with the indigenous community specifically.

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

As a representative of PDAC, would you say that FPIC represents a significant potential for organizations to take advantage of opportunities, as opposed to some of the negative criticisms we've seen or heard in the past around free, prior, and informed consent? Rather than looking at it as a negative, can it be seen as an opportunity to collaborate and forge those partnerships together?

[Michael Fox]

The track record of PDAC members actually proves that some form of FPIC or consensus-making is what we do well with communities. Again, it's based on relationships, creating the relationship with communities, understanding their interests, understanding their needs and aspirations, and understanding how a particular project can assist in that. There are a lot of empowering elements in that, whether they be training, education, health and safety, being part of the environmental assessment, predevelopment, pre-construction, operations, or all of the supporting service companies around the project.

It takes a lot of effort on the part of our members to make that happen. Every partnership is formed in its own setting. A community may be a multi-site community; it's not just one community on one site. It could be that off-reserve decision-making is required. There are different ways to achieve the consensus around projects.

It's not a practice that's foreign to the indigenous communities themselves. They do it under the Indian Act around land designations. They have to go through a process if they want to do things on reserve, and then they have to go through a land designation community engagement process for the leadership. It's all to get the consent of the people to do something specific around their reserve lands.

Even modern-day mechanisms like income trusts also go out to members and engage to try to achieve consensus. It's not new. It's a practice in which our industries have participated in different forms and different ways.

[TJ Harvey, Liberal, Tobique—Mactaquac, NB]

Thank you.

I'm going to give the balance of my time to Mr. Tootoo.

[Hunter Tootoo, Independent, Nunavut, NU]

How much time do I have?

[The Chair, Liberal, MaryAnn Mihychuk]

You have a minute and a half.

[Hunter Tootoo, Independent, Nunavut, NU]

Maybe before I go on, Mr. Grondin, there was my previous question. I don't know if you remember it, but it looked like you wanted to respond. I'll give you a chance. Do you remember it?

[Paul-Matthieu Grondin]

I'm going to answer in French.

In Quebec, the issue is justice in the north. We have numerous justice-related challenges in the region. Those in the justice system are working hard, but there's a huge lack of resources. Whether we are talking about translation services or court workers, much is needed in order to provide people in the north with a high-quality justice system.

We want to be as vocal and as open about it as we can. Indigenous people are entitled to a justice system that works. As it stands, the justice system is taking the place of basic services, and that shouldn't be the case. It's time to really talk about that.

[The Chair, Liberal, MaryAnn Mihychuk]

You have 10 seconds.

[Hunter Tootoo, Independent, Nunavut, NU]

I think it's not only high-quality services, it's basic services.

I won't have time, Mr. Fox, but I know in Nunavut we have a very good regulatory regime that developed under a land claims agreement and a regulatory regime that involves the federal government, the territorial government, and Inuit organizations. I'm wondering if you've thought of setting up something like that—