Indigenous and Northern Affairs Committee on April 24th, 2018

[Pat Van Horne]

I think I would defer to Mr. Joffe on that one, but certainly some of what you heard with PDAC this afternoon, as well, that consent isn't a one-way street. Consent is two ways, and if this legislation is geared towards ensuring that, then I think that's what makes it necessary—

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

Since my time is very limited, maybe I will move to Paul.

How do you measure consent?

[Paul Joffe]

Consent will be different depending on the processes you're dealing with.

If you're dealing with an international convention or instrument, like they were with climate change when Canada invited indigenous peoples to be part of it, in such a process it has to fit the process. If you're dealing with constitutional change, like we did when we had the Charlottetown accord, again, consent was reached among all political leaders—

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

Is it a collective indigenous right or is it an individual right?

Let's talk about Kinder Morgan. Let's assume UNDRIP was already approved. We have many first nations who are against it, but over 40 have signed benefit agreements. Assume they are for it. Is that consent or is it not consent?

[Paul Joffe]

In every situation, you take in the facts and the law. You have to.

Let's say you have 15 first nations. Half go one way and half go the other way, and you have all these different opinions. One has to look at the facts and the law. What if certain first nations were going to suffer serious and long-term impacts? I believe a court would give more weight to those first nations than to some who said, “Well, we're not going to be affected much by the project, but of course we're going to take the impact and benefit agreement”, or whatever.

In other words, in every case you have to look at the facts and the law. One cannot just ask how is it going to work. That's only fair to everyone, because everyone's facts and law are incorporated in that process.

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

It's complicated.

Jennifer, do you have any thoughts on that? We only have about 50 seconds on this.

[Jennifer Preston]

To build on that as well, even when you look at a situation like Kinder Morgan, which has been so much in the press—and this question around that has been built up—signing an impact agreement doesn't mean you're necessarily for the project. You may have felt that was the only option. I think it's important to know that.

I would also say that I think one of the things about the NEB approval of Kinder Morgan is that it wasn't necessarily a good process. That has created part of the problem that we have. Having better processes before we reach this point, which is what Bill C-262 is all about, means that we're not hitting those conflicts.

Why did we hit a conflict wall? We hit a conflict wall because Tsleil-Waututh First Nation was not accommodated in that process. We hit a huge wall. If we have better processes that don't lead us to those enormous conflicts, we're going to be way better off.

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

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Now we're moving to MP Cathy McLeod.

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

Thank you, Madam Chair.

Thank you to the witnesses.

I want to say up front that the UN declaration has the support of all parties. What we're talking about is Bill C-262 not necessarily having the support of all parties.

When it's characterized that any objection to it is fear and rooted in colonialism, I take exception. As legislators, I think it's important that we understand the implications of any piece of legislation that's before us. I just want to make that note.

We heard from Mr. Joffe, who is very well recognized and honoured. We've heard from a number of lawyers who have a very different perspective in terms of what the implications of Bill C-262 might be in Canada. I think that is a legitimate and important debate, and we shouldn't shut down that debate.

I have one question. We can have a lot of lawyers speculating on what it will mean to Canada, but is this important enough that it should be a reference question to the Supreme Court, in terms of really understanding it and changing Canadian laws to be consistent with the declaration?

I'll put that out there. Is that something that should be done?

[Paul Joffe]

I had the privilege of being in the reference on Quebec secession, so I know when it's important to resolve certain questions. I don't believe this is one of them because there are just too many situations. How is the court going to judge? Usually they want a contextual analysis and you need a certain set of facts. Just to say one way or another doesn't do anything.

I work with broad coalitions not only in Canada but internationally, and also in Latin America, and we've always worked toward building consensus and looking for co-operation. How can we work with states?

We see this as a tremendous opportunity for real co-operation. When one looks at colonialism, it was basically built on unilateralism. Someone knew best, and knowing best didn't work out. Romeo's bill has at least two processes for co-operation.

That would be my brief answer.

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

I certainly agree that we have a very poor record of collaborative consultation, of honouring the agreements that are already made. We don't have a good track record for the last 150 years, and we certainly heard that with our land claim study.

You were talking about consent, and I'll bring Pam Palmater back because I've mentioned her before. We're still waiting for the Justice officials to talk about consent. We had one person who talked about three possible definitions for consent. Pam Palmater asks in what alternate universe does consent mean something different in this bill as opposed to life in general. I think she has a pretty good point there.

The NDP is clearly on the record that it's not contextual, that it's every single first nations ever impacted that has to give consent. That is something that one of Mr. Saganash's colleagues said when he described the application of FPIC, that every single first nations impacted must give consent. You don't want to use the word “veto”, but if you say “yes” or “no”, then I think.... Essentially, if you're requiring consent from every single first nation, which the NDP have interpreted it as.... We look at Pam's comments. We can't even get a definition from the Justice lawyers.

Can you talk to me more about that issue?

[Pat Van Horne]

I can talk to it in terms of collective bargaining. There is a context that we negotiate, for example, in northern communities, time for our indigenous members to participate in traditional activities, so there's time off for different activities on the land. That is different from an impacts benefit agreement. It's something that by virtue of the fact they're union members, they're a part of. Collective bargaining with employers is the context that I know. It's teeny-weeny compared to a whole government looking at every piece of law and everything that we do, and measuring it against UNDRIP, but it's not a bad model, in my view.

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

Another interesting point that was brought up at our last session was the impact of the Daniels decision.

Mr. Joffe, what thoughts would you have around that particular issue in terms of that whole consent process?

[Paul Joffe]

Yes, first of all, I read something on the Daniels decision by Thomas Isaac and Arend J.A. Hoekstra. I read a little about it.

International instruments cannot include details for every possible situation; that's not how it works. You have 193 countries. It's impossible for them to know. Even if they do know, which they couldn't, all 193, tomorrow the situation could change. That's not the purpose. International instruments help to reinforce and to interpret Canadian law. That's just the way it works.

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

We're looking at applying an international instrument to Canadian law, so it becomes very important to understand the implications of things like the Daniels decision, getting consent, and whom to consult with, let's say, on laws of general application for article 19.

[Paul Joffe]

First of all, if you're going to consent, you have to look at each of the situations. Let's say that you do get different results from different first nations. It's all part of the mix. One cannot say how it's going to come out without balancing the facts in law in each case. That doesn't mean you take away their right to say no. If a first nation feels that it's going to really suffer, it has to be able to say “yes” or “no”. What I said at the beginning is that this isn't absolute. There's no veto. In my mind, veto means absolute; you don't have to take into account the facts in law.

I'll leave it there because we're short of time.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

MP Saganash.

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

Thank you, Madam Chair.

Thank you to our presenters.

Pat, please relay my greetings to Mr. Neumann and tell him I really appreciate the support for Bill C-262 from your union.

Thanks, Jennifer and Paul, for your presence here. I think it's important. Your combined experience on the declaration is about 100 years.

Paul, you said in your comments that the consent we find under international human rights law is the same consent we find in Canadian constitutional law. Can you point to any decisions of the Supreme Court where these elements were addressed: free, prior, and informed consent?

[Paul Joffe]

I'm not aware that it went to the Supreme Court. It's just that one has to decide first whether these rights are relative. Human rights are relative. They can't be absolute. If everyone had absolute rights, how would you determine any issue? Everyone has the ultimate decision because they said so. Life doesn't work that way. In international and domestic law, human rights are relative. That rule exists in both. That's why it leads to very moderate and co-operative conclusions.

I have to compliment the United Steelworkers. I read their brief, and it's right on as to how it works. They said clearly that they supported it because it was relative. It has to be relative. “Relative” means including everyone. “Absolute” is impossible. We can't all be absolute decision-makers.

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

You also mentioned the American Declaration on the Rights of Indigenous Peoples. I've read both declarations, and there are provisions in the American declaration that are stronger than provisions in the UN declaration. Can you explain to the committee how that works? There are provisions that are weaker.

[Paul Joffe]

First of all, just know that the consent provisions in the UN declaration have now been approved, pretty much word-for-word, in the American declaration. How do you decide when both the American declaration, which is a regional one applying to the Caribbean and all the Americas...?

I did a detailed study, which I'm happy to share with this committee. I worked on the American declaration as well as the UN declaration. What came out is that the minimum standard would be the higher of the two minimum standards if both addressed the same point. If they didn't, then you go to the one that addressed what you're talking about. If both address it, then the new minimum standard is the higher one.

What you see here—and I'm glad Romeo brought it up—is it continues to build. International law is totally using the UN declaration throughout the UN system, and now we have the American declaration. It's not going away, so it pays to try to come to some understanding.

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

Jennifer, I know you participated in the process during the time it lasted at the UN. You probably were present in New York for the final vote on September 13, 2007, where 144 states were in favour, four against, and there were 11 abstentions. We heard from Thomas Isaac yesterday. He spoke of trying to minimize the importance of the consensus vote that happened in September 2007.

He states in one of his books, “Of those 88 states with Indigenous peoples 42 (less than half) voted in favour. 11 states abstained and 16 were absent for the vote. Further, many of the states that voted in favour of UNDRIP placed conditions or caveats on their vote...”.

Do you have comments about that?

[Jennifer Preston]

I think that's a real mischaracterization of the way the General Assembly works at the UN. When the General Assembly has a resolution before it, states have the opportunity to vote for or against it, or to abstain. If you're not in the room, that's irrelevant, and it's not counted as anything. In this case, four states voted against it, and all four of them have reversed their position. Canada reversed its position in 2010. When those four states reversed their positions, that made the UN declaration a consensus international instrument. Again, abstentions don't have any legal bearing either on the vote. Once it becomes a consensus instrument, it means no state in the world formally opposes it.

For this declaration, it's been almost eight years since that happened. It has also been reaffirmed by the General Assembly, and Canada, at least eight times by consensus, so at the international level they have reaffirmed their consensus support for the UN declaration.

I've seen that passage of Mr. Isaac's before, and I think his math doesn't add up. I think if you add up the number of member states in the UN, there's something wrong with his math. I'm not going to go into that now, but I would say that it was a very bizarre interpretation of the voting rules within the United Nations.

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

Thank you.

Paul wanted to answer.