Indigenous and Northern Affairs Committee on April 26th, 2018

[The Chair, Liberal, MaryAnn Mihychuk]

We are here at the Standing Committee on Indigenous and Northern Affairs at the Parliament of Canada, and we are talking about Bill C-262, an act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.

As we sit here today and we're talking about some of the truths and we're in a process of reconciliation, it's important to recognize that we're on the unceded territory of the Algonquin people and that this is a live process that we're still working our way through.

We have two groups for the first panel. You'll get up to 10 minutes. However you want to split it up is up to you. I'll give you signals before your time is up. Then we'll go into rounds of questioning.

We're going to start with the First Nations Major Projects Coalition, Chief Corrina Leween.

Welcome. Please go ahead.

[Chief Corrina Leween, Vice-Chair, First Nations Major Projects Coalition]

First of all, thank you, Madam Chair.

I am Corrina Leween. I am the Chief of the Cheslatta Carrier Nation. Our territory is situated in a semi-remote location in the north-central interior of British Columbia. Since 2015, I have served as Vice-Chair of the First Nations Major Projects Coalition, which is the point of view I will be speaking from today. Before I begin, I also want to acknowledge our presence today on the traditional territory of the Algonquin people.

With me today are two members of the coalition's technical support team; Niilo Edwards, who is our Executive Director; and Aaron Bruce, who is our Legal Adviser and also a member of the Squamish Nation in British Columbia. Mr. Edwards and Mr. Bruce are able to respond to questions the committee may have about the coalition's technical work.

I want to begin by thanking the committee for this opportunity to provide comments on the consideration of Bill C-262. In particular, I want to thank Mr. Saganash for his efforts to bring this proposed legislation forward. I also want to recognize Minister Jody Wilson-Raybould and the Government of Canada for indicating their support for the consideration of this bill.

Today I see a historic opportunity for indigenous groups and communities to collaborate with other orders of government to create a better and shared future. Bill C-262 represents an important break with the past and a bold step into the future. UNDRIP is a tool of empowerment and a means of taking control of our destiny as the original owners of our traditional lands. This was not always the case. Our past is what has brought us here today, but it is our actions today and in the weeks, months, and years ahead that will give us a chance to set a new path, a path of our choosing.

I will start by outlining the work and the structure of the major projects coalition, which our nations established to convert our legal and constitutional rights into financial well-being and independence. Established in 2015, the coalition is a first-nations-led response to addressing community-level business capacity gaps. What started as a group of 11 first nations looking for equity ownership in major projects has grown into a first-nations-led organization of 40 elected and hereditary first nations. We have developed a comprehensive suite of economic and environmental technical models that can be used to benefit our communities.

Our mandate is non-political and business-focused. The coalition is a project-agnostic body that provides access to technical services and capacity support to our members upon request. The coalition's structure makes it possible to provide technical services to a large number of first nations dispersed over a wide geographic area. Services designed to support informed decision-making are provided to coalition members free of charge due to the funding received from the governments of Canada and British Columbia.

Our structure as a nation-based and community-driven organization has attracted the interest of first nations in other parts of Canada. We are building towards becoming a national initiative. At our March annual general meeting, members of the coalition moved to create an extra-provincial caucus, enabling first nations in other parts of Canada to join the coalition. The coalition and its services are, by design, inspired by the United Nations Declaration on the Rights of Indigenous Peoples. We have submitted a technical brief to your committee that compares key pieces of the coalition's work with articles of that declaration.

While much has been said at this committee about the political and legal considerations concerning Bill C-262, we are here to speak to issues that highlight its practical application at the community level. I believe discussions of this nature are needed to shape the implementation of this legislation.

The coalition's work gives examples of how the government can structure its interactions with indigenous governments to live up to the principles of the declaration. These interactions should, and rightfully so, challenge the status quo and bring about dramatic and substantial change. The presence of the coalition shows that UNDRIP matters in the lives of indigenous people.

The prospects for significant change also generate fear of the unknown. Consider the principles of free, prior, and informed consent. The coalition explores the principles in the context of major project development. It provides a foundation for shared decision-making processes between indigenous governments, other orders of government, and proponents backing development within traditional territories.

We often hear the Prime Minister and members of his cabinet say that the environment and the economy can be balanced. We can get to that balance by working together, but it is the approach to working together that matters the most.

Our tools and models ensure that the traditional and the cultural interests of our members can also be balanced with our commercial requirements. We can use financial prosperity to support our self-determination and self-reliance. This work is organized by the coalition through three cornerstone process documents: one, a model ownership tool kit; two, an environmental stewardship framework and project assessment standards document; three, project identification and capacity support criteria document containing project-scoring criteria, which is in essence a first nations definition of what a major project is to our members.

Government and project proponents need to understand that this work is currently under way. We are undertaking some of the work necessary to administer our own affairs and advance our own futures.

The Government of Canada is making comparable efforts through such measures as the rights and reconciliation framework and the sunsetting of the Department of Indigenous Services. That requires the indigenous groups and communities to develop the sustained capacity to fully develop their own decision-making processes. Our nations have and they are ready to act.

We also have to inform government about our needs and provide them with a road map to developing these collective skills. Likewise, governments can assist the process by engaging groups like the coalition in the technical discussions. These often take place at the political level.

We need to move these partnerships at the operational level within departments and central agencies. This openness to collaborate must become commonplace across government departments and central agencies, particularly as Bill C-262 is implemented.

In closing, we need to exercise tolerance and understanding. There will be missteps along the way by our nations and by other governments, but if we believe in UNDRIP, we will accept occasional errors, provided the spirit of collaboration remains strong. UNDRIP changes everything. It provides, finally, our communities with the opportunity to move forward at lightspeed. We call on governments to support our efforts to capitalize on the new reality. We ask them to collaborate with us to build on UNDRIP's potential: a new future, one based on indigenous rights, autonomy, and prosperity. It's within our grasp.

We want to see UNDRIP synchronized with Canadian laws and legislation. Our communities want control of their future. Bill C-262 is a major step in the right direction.

I thank you for listening to me, and I look forward to your questions. Mahsi cho. Awitza.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

For our second presenters, we have MTI from New Brunswick.

Chief Rebecca Knockwood and Derek Simon, please go ahead.

[Chief Rebecca Knockwood, Fort Folly First Nation, Mi'gmawe'l Tplu'taqnn Inc.]

Thank you, Madam Chair.

My name is Chief Rebecca Knockwood and I am the Chief of Fort Folly First Nation, and the Co-Chair of Mi'gmawe'I Tplu'taqnn, MTI, representing the Mi'kmaq residing in the province of New Brunswick. Beside me, I have Derek Simon, Legal Counsel for MTI.

I would first like to acknowledge that we are on the unceded territory of the Algonquin peoples. I wish to thank the Algonquin Nation for the opportunity to be on their territory.

I would also like to thank the Creator for providing us with the ability to be here today to discuss this most important issue facing our indigenous peoples and facing Canada as a whole.

The Mi'kmaq are the indigenous people of what is currently known as the Atlantic provinces, parts of Quebec, and parts of New England. We are signatories to peace and friendship treaties with the British crown, to which Canada is now a beneficiary. We have never ceded title to our territory.

First, the Mi'kmaq of New Brunswick adamantly support Bill C-262, the United Nations Declaration on the Rights of Indigenous Peoples act. We are most thankful to the Honourable Romeo Saganash for submitting this private member's bill in furthering the realization of indigenous rights in Canada.

In considering this bill, we would bring the committee's attention to the following most important issues.

The first is free, prior, and informed consent, which I will refer to as FPIC. Since Canada withdrew its objector status to the United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP, in 2016, there has been much concern regarding Canada's adoption of UNDRIP. Specifically, articles 19 and 32 identify the necessity of free, prior, and informed consent and say that Canada must consult with its indigenous people to obtain FPIC where they wish to adopt and implement legislation that will affect them or where Canada wishes to approve any project that will affect indigenous lands or resources.

There have been concerns raised by many that, if Canada is to adopt UNDRIP, then these specific provisions would provide indigenous people with a veto over legislation and project development.

FPIC is not a veto. FPIC means that the government must consult with indigenous peoples with the goal of obtaining our consent to use our lands. Where they cannot obtain the consent of the indigenous groups, government must justify its conduct following a framework set down by the court. This is consistent with what the Supreme Court of Canada has said on this issue numerous times, most recently in the Tsilhqot'in decision in 2014. FPIC also means that indigenous people have a right to say no to projects or legislation that affect our rights or our lands.

This approach is consistent with our rights of self-determination, and UNDRIP's identification of FPIC provides a strong framework for reconciling indigenous rights within the larger context of Canadian society.

Under article 46 of UNDRIP, Canada has the ability to limit the rights set out in UNDRIP where such limitation is "necessary...for...meeting the just and most compelling requirements of a democratic society.” This is the justification test that is similar to what government currently operates within with respect to the section 35 constitutional rights of indigenous peoples. As has been identified by the Supreme Court of Canada, section 35 aboriginal rights can be infringed upon, so long as Canada can justify the limitation based upon various things, including a legislative objective, conservation, safety, etc.

Thus, it is clear that there is no veto power for indigenous people contained in UNDRIP, but rather an approach that is consistent with the existing section 35 constitutional framework. That approach is also consistent with our peace and friendship treaties, which require Mi'kmaq consent for use and occupation of our lands.

What UNDRIP does is clarify Canada's existing legal obligations to indigenous peoples, including making clear the circumstances in which consent is required and the nature of that consent.

This is important, because while the courts have made the legal requirements clear, legislation and policy have not necessarily kept pace. Environmental laws and regulatory processes often treat indigenous peoples like stakeholders rather than rights holders, and government does not always approach the consultation process with the goal of obtaining consent, leading to costly disputes and litigation with indigenous peoples. We have seen this in our territory, with protests over fracking, disputes over the Sisson Brook mine, and the derailment of the energy east review process. If government had approached these projects with the goal of obtaining Mi'kmaq consent for these activities, rather than simply going through the motions of consultation, outcomes might have been different.

Bill C-262 creates a legal requirement and a process for Canada to ensure its laws are in compliance with UNDRIP. However, since policies often influence how government conducts its day-to-day business, we would recommend that the words “and policies” be added after “laws” in clause 4, and that policies be included in the national action plan required by clause 5.

Another important aspect of UNDRIP is its recognition of our rights to our lands, territories, and resources, and our right to readdress those rights. They have been lost. While these rights have already been recognized by the courts, articles 26 and 28 affirm these rights, and article 27 requires Canada to develop “a fair, independent, impartial, open, and transparent process”, having regard to our laws, customs and systems, to recognize and adjudicate our rights pertaining to our lands, territories, and resources.

Although the federal government has long recognized that its comprehensive claims and self-government policies do not adequately address the needs, aspirations, and realities of the Mi'kmaq as signatories to the peace and friendship treaties, we have struggled for some time to come up with an effective alternative to address the implementation of our aboriginal and treaty rights and the recognition of our aboriginal title.

Recently, the Mi'kmaq of New Brunswick, like our brothers and sisters in Nova Scotia, Quebec, and Prince Edward Island, have been working with the Government of Canada and the province to develop an effective process for implementing our aboriginal and treaty rights. This is called the rights implementation approach to negotiation. Much work still needs to be done, particularly on finding a way to achieve due recognition of our title. We would prefer not to have to resort to lengthy court battles in order for our title to be recognized, but we still lack effective mechanisms for addressing this outside of the courts.

The adoption of the UNDRIP bill is helpful as it creates a legal framework to ensure that our right to an effective process is grounded in law, and not just in policies, which can change from government to government. Beyond adopting this bill, we have suggested a number of specific actions the government can and should take to more effectively address our rights in our submission on the government's proposed rights recognition and implementation framework as well. We will provide the committee with a copy of that submission.

Wela'lioq for listening to me today.

I welcome any questions you may have.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you so much.

Questioning starts with MP Mike Bossio.

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

Thank you, Chair.

Thank you so much for being here today and providing your testimony. The efforts you put into providing this testimony are greatly appreciated.

A number of witnesses have come forward here and have talked specifically about FPIC. I think Professor Dwight Newman framed it best when he said that there are three approaches right now in which FPIC is viewed. The first interpretation is that it's enough to seek FPIC in good faith without necessarily obtaining it. The second is that it's possible to move away from talking about consent itself as long as one has the right type of consensus-oriented process, or what some have called “collaborative consent”. The third, of course, is an outright veto.

To both of you, in what way do you ascribe to the FPIC interpretation provided by Professor Newman? Or do you have your own interpretation as to what FPIC means and the implications it could have?

Chief Leween.

[Chief Corrina Leween]

The major projects coalition is a non-political body that provides technical supports to our individual communities, who are 40-strong right now. I won't speak for any of those communities as vice-chair; I have to wear two hats here. What we do is provide the tools that are necessary for them to make their informed decisions as to what FPIC is. Their decisions regarding veto are their own.

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

Okay.

Chief Knockwood.

[Chief Rebecca Knockwood]

I'll let Derek answer that question.

[Derek Simon, Legal Counsel, Mi'gmawe'l Tplu'taqnn Inc.]

I think the view of the Mi'kmaq chiefs is that it's a requirement to seek consent in good faith. I think that's what is often lacking in the consultation process, at the moment. Government and industry are not entering into it with the goal of getting consent, at the end of the day. Good-faith efforts toward consent are what's required, in our view.

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

It's kind of a “collaborative consent” type of approach, then.

[Derek Simon]

Yes. I think Chief Leween referred to it as being sort of shared decision-making, and I think that's the way we look at it as well.

The Mi'kmaq view on FPIC is informed also by the treaties of peace and friendship, which contemplate a certain amount of shared stewardship and shared decision-making. Certainly, looking at it through that lens, it's a collaborative process.

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

Do you think this is a potential flaw within Bill C-262, that there should be a definition of what FPIC is, or should we...?

There's this argument we've heard here about the legalistic defined approach and then the nation-to-nation relationship approach—you know, the black letter of the law versus political will. Some say that you can't really have one without the other, and others say that it can happen concurrently; it doesn't have to be stated right up front; the black letter of the law does not have to come first, before we enter into UNDRIP and the nation-to-nation relationship that will ensue, in developing a rights framework and toward conciliation.

What would be your view of that?

[Derek Simon]

Speaking as a lawyer, I think there's a risk in trying to be too legalistic and black-letter law about it in seeking to define FPIC through legislation rather than allowing that to be worked out as part of the discussion between indigenous peoples and the Government of Canada.

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

Another professional lawyer, Thomas Isaac, came forward and spoke about this. He said that this is a deep flaw; that basically UNDRIP will blow up the legal conventions we've established over a generation, since section 35 came into being; and that, if we do this, the sky is going to fall.

How would you address the concerns he has expressed?

[Derek Simon]

I don't think we agree there. We're very much of the view that it doesn't impose additional legal requirements beyond what already exists in a section 35 framework in Canadian law. It clarifies those obligations. It clarifies in what situations consent is required and then, obviously, the free, prior, and informed consent finds what consent needs to look like, but I think that's going to be a bit of a dialogue to figure out. It'll be part of the back and forth between Canada and indigenous peoples. I'm sure the courts will provide us with some guidance there as well. Lawyers love to have things legally defined, but I'm hesitant to try to put a strict legal definition to that in the legislation.

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

Mr. Amos and I are on the environment committee and right now we're studying Bill C-69, the Canadian Environmental Assessment Act. This, of course, is a key discussion as part of that act, what amendments need to occur to bring about that meaningful participation, that collaborative consent type of approach, and how we can put that within the act so it recognizes UNDRIP, and starts to work toward a rights framework.

In going forward with Bill C- 262, I would assume you would agree that we need to ensure that, as we are going through these other acts, we develop a consistent approach across legislation so we can arrive at the place you're discussing right now.

[Derek Simon]

It's not just across legislation but across policy as well, and that's a point we made. The reality is that I think for many public servants, their marching orders on a day-to-day basis come primarily not from legislation but from policy.

I'll give you an example. We deal with property dispositions by the federal government and the Province of New Brunswick, and a consultation process is set up for doing that. That policy came into force, I think, in about 2006, maybe 2008, and it's a Treasury Board approved policy. It was done pre-Tsilhqot'in, and so the government officials we deal with acknowledge quite openly that the policy doesn't properly account for title claims, for what the Supreme Court of Canada said about title in Tsilhqot'in. They've tweaked the process a little to try to take into account Tsilhqot'in, and they'll tell you they feel bound by the policy, but the policy, in their view, does not comply with the Tsilhqot'in decision.

Having that built in is another important feature of the bill: that report and annual review, and making sure those kinds of policies are being reviewed and updated on an ongoing basis to take into account obligations under UNDRIP and new court decisions. Otherwise—

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Sorry, I don't like to cut you off, because it's an important discussion, but we want everyone to have fair time.

MP Cathy McLeod.

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

Thank you. I want to pick up on two areas.

I can appreciate that, no question, absolutely the work needs to be done to create a common definition in partnership with communities. We are legislators dealing with legislation. When you leave something as important as potentially three or more definitions interpreted differently across the country from person to person, community to community, I wonder if we're creating more challenges for ourselves rather than less, without doing that work to at least create a common, shared understanding of the meaning of FPIC.

That's my first question. I leave it to both of you to respond to that.

[Chief Corrina Leween]

I believe we're heading to the implementation stage. We need to start looking at the implementation of all the new legislation that's at hand for our people back home. Again, being non-political in this arena, I believe it's up to our people back home to get the tools they need through capacity building, to understand the actual legislation on the table, and how they implement it within their communities.

Our different communities are so diverse that we need to be able to acknowledge each specific need back home. Some first nations have the novelty—and I don't know if it's novelty and sometimes it's not—of a highway running through their community where economic development becomes available, and then you have the isolated communities that don't have that. For the major projects coalition to go into those communities and allow technical services where they would not normally have them, our job would be to go in there and give all the information to those communities and have them make their own informed business decisions, which would enable the capacity to be built to have self-sufficiency brought into their community.

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

That's still leaving me with—which I think we frankly expressed upfront—some discomfort with proceeding forward until we.... I mean, as legislators, to not understand the implications to passing something....

I think we all recognize UNDRIP as important, so what we're talking about is Bill C-262.

How does the Daniels decision overlay into Bill C-262? Perhaps that is a question for the lawyers here.

[Aaron Bruce, Legal Advisor, First Nations Major Projects Coalition]

Again, I think to reiterate Chief Leween's mandate, we're an organization that has a mandate to represent the technical interests of a group of first nations, not to get into the more political aspects of it, and so I will not answer that question directly.

To follow up on Chief Leween's comments, if you really want to understand us, the best is that, in FPIC, this organization is the informed part, it's the information part, so we have a big interest in the implementation. We see the bill as a necessary step in order to have those conversations about implementation, and I think, at the political level, the conversations on what consent means will come about once this bill is passed.

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

Mr. Simon, do you have anything to add to that?

[Derek Simon]

The Daniels decision told us a bit about the federal government's jurisdiction with respect to indigenous peoples, but it didn't really provide us with much more information on who is in an indigenous people or not, so it's sometimes misinterpreted as granting indigenous status to a much wider group of people, and all it really did was clarify that non-status and Métis fell under that federal jurisdiction in the—