Indigenous and Northern Affairs Committee on May 3rd, 2018

[Justice Harry Slade]

Well, I agree with everything that Professors Turpel-Lafond and Borrows have said about positioning UNDRIP in relation to enactments that have some bearing on indigenous interests, including the provisions that go to the social conditions. It clearly is a positive statement, albeit some might say it's unnecessary because Canadian law is such that people should not suffer discrimination based on race. Whether or not that's so, there's plainly a need to address as somewhat unique the particular circumstances of indigenous peoples, having regard for these statistics that you mentioned earlier.

With respect to land, however, it comes down to expectations, it seems to me. I think one would have to have been fast asleep for the last while not to realize that expectations are being formed around ownership of traditional territories and FPIC, which, in my respectful view, require careful attention and clarification. This is not to be negative about it, but it is to signal that expectations need to be addressed as we see them arise.

[The Chair, Liberal, MaryAnn Mihychuk]

Questioning now moves to MP Cathy McLeod.

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

Thank you to everyone here, especially from my home province of British Columbia.

I hate to be like a dog with a bone on the FPIC issue, but I have to pick up from what we were just saying. If anyone was listening to the AFN in the last few days, there seemed to be a lot of different perspectives about what FPIC and Bill C-262 were going to accomplish.

Some of the witnesses here today have a very clear understanding of what they believe FPIC is, but even my NDP colleagues on TV last week and then in the House today, gave a much broader meaning to FPIC. This is part of the reason I truly believe it's important that the definition be such that, as some of you have indicated, there is a common understanding, or else we will be creating a lot of significant problems down the road.

Justice Slade, would you care to comment on that? We've had three definitions from one witness. We've had everything that's been said in the last few days, and so I think we have an issue with the definition.

[Justice Harry Slade]

I think the emphasis in the declaration is on seeking consent, not requiring consent. Who could contend that this is not a good idea?

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

I don't think anyone would say it's not a good idea.

[Justice Harry Slade]

I'll never be called upon to adjudicate the matter, so it's probably fairly safe for me to say that it's pretty clear to me, from looking at UNDRIP and the movement toward implementation, whether that be legislative or simply by policy, that Canadian common law is not likely to be disrupted by it.

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

A legal expert described the bill as quasi-constitutional. Would people agree that this is not a typical piece of legislation, in that it's quasi-constitutional?

I'd like a quick yes or no from all three of you.

[John Borrows]

I think what happens here is it implements our Constitution, and so in that respect it's connected. Of course, the bill could be changed by a subsequent Parliament, and so it's not constitutional in that regard. Another party might entertain other ways to implement UNDRIP.

In relation to the former question, I think you're right, in that there are going to be differences of opinion around what FPIC means. That is why the process and the principles that guide this legislation are important.

Just as we have a difficult time saying what is equality or life, liberty, security, association, freedom of the press, if we were to wait to define equality, for example, before trying to implement it in legislation, there are so many different views of equality, I don't think we'd ever get there. Likewise with life, liberty, or security.

What this does is that it commits us to a process where the differences of opinion can be joined, and then through the political process we can saw off and work to compromise the harmonization—

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

Thank you.

Sorry, I have a few more questions, and I only get seven minutes.

I believe we could come up with a definition that would fit with this, but if this truly is a quasi-constitutional piece of legislation, to have it go through a private member's process without having the opportunity for the due diligence of even getting the minister here to talk about this bill.... A government bill is very different from a private member's bill; we're talking about a very significant piece of legislation. It sounds as if everyone believes it to be.

Justice Slade, do you have any comments on that?

[Justice Harry Slade]

Frankly I don't see any difference. It depends on who supports it, and I gather that at second reading the government supported it. I would offer an observation that it's a bit unusual to enact legislation calling for other legislation to be enacted. Frankly, unless it's constitutional, I don't see how that can be enforced, but it delivers a message that the author and the proponent of the bill, and presumably the government, want to get out there, and what's wrong with that?

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

Article 19, which is more about the laws of general application, seeks to acquire.... To meet that sort of standard in terms of the Inuit, the Métis, the as yet undefined Daniels v. Canada, and the first nations from across the country that have not reconstituted...?

My other concern is that we have created something so unwieldy that the government could not even afford something such as Bill C-45, because everyone would have the right to have their consent sought on these issues.

[Justice Harry Slade]

I guess you have to start somewhere.

[Mary Ellen Turpel-Lafond]

I'm happy to comment on some of the assumptions I'm hearing.

One is that UNDRIP, in terms of article 19, seeks to promote a relationship that is collaborative. However, I want to emphasize—again, from reviewing some of the evidence, and obviously you have heard a lot—that constitutionally, the law is the law. People can say, “This means I have that,” but that's not accurate.

FPIC, as an example, is not an absolute concept. It has been presented sometimes as such by all kinds of people, but that's actually wrong. It's constrained. It's within a context of reasonableness, and it's framed.

It's the same with UNDRIP. What kind of a statute is this? Well, it's a federal statute. Where it starts and where it ends, I don't know. Certainly, it would be very important for all parties who have supported UNDRIP to find a way to bring this to a higher level and not to argue.

In any event, the technical questions you have asked do not seem terribly insurmountable to me. Legislation is legislation.

[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, and welcome to our guests in Ottawa.

Welcome, Professor Borrows. I know that you are taking French classes at the moment, and I hope that they work out well for you.

I want to start with both professors. Some expert witnesses came to this committee and talked about the rights contained in UNDRIP as human rights, and that's how they have been treated for the last 35 years in the international arena.

Paul Joffe, one of our legal experts, talked about the charter rights that are contained in part I of our Constitution, and the section 35 rights that are contained in part II of our Constitution. The Supreme Court has referred to them as sister provisions.

We know that in our legal system, under section 4.1 of the Department of Justice Act, the Minister of Justice has to make sure that legislation is consistent with the Charter of Rights and Freedoms. We don't necessarily have that obligation with indigenous rights, aboriginal rights, or treaty rights in our system.

I believe that the minister would have that obligation even without Bill C-262, but do you believe that Bill C-262 would achieve that? Whenever legislation is contemplated in the future, will the government have to make sure that its laws are consistent with the UN Declaration on the Rights of Indigenous Peoples?

Maybe I'll start with Mary Ellen.

[Mary Ellen Turpel-Lafond]

I do think that that's a very significant objective and an imperative that has already been accepted by the federal government, from what I understood from the statement of the Prime Minister on February 14 in the House of Commons.

More generally, as a principle of international law as adopted by Canada, these are human rights, and this does relate to section 35. There have been deficiencies in addressing section 35 appropriately. I'm not saying that there haven't been some good individual decisions, but there have been very structurally significant problems with moving forward on section 35 in a respectful, positive way with an appropriate human rights lens.

Bill C-262 allows us to put that human right lens appropriately where it should have been all along, but the depth of our dialogue was constrained by many historical factors. At the same time, the depth of our dialogue is enhanced by the acknowledgement that we've had longstanding respect for the rights of indigenous people, but many of our laws, policies, and practices are premised on the colonial assumption that indigenous people were not on the land, that they did not govern, and that they didn't have family structures. That more oppressive colonial context, which we know is false, is where human rights help us to rethink it. It's not going to unwind everything, but will help us to reconsider.

Just as human rights evolve as a living tree, this is a living tree. I do emphasize that it's part of a tradition of a reasonable—I'm not saying incremental—thoughtful, constrained approach, but it should also become a part of a routine human rights concept. All human rights have limits, but they provide a very valuable way to understand how we relate to each other and how government relates to citizens.

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

Professor Borrows.

[John Borrows]

I would agree and say that the orientation is also welcome. Sometimes there's an assumption that indigenous peoples are diametrically opposed, adversarial, or at odds with the way that we want to see ourselves develop as peoples living in this country. The notion of consistency communicates that very important and powerful ethos that we can strive to live together in ways that are complementary and congruent with one another, other, as opposed to being inconsistent and out of step with one another. The fact that the government would undertake that kind of review is an important aspect of that, but it sends the more general message that we don't have to be in this place of always seeing the world in diametrically opposed terms.

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

I want to refer to subclause 2(2) in Bill C-262 as well as clause 3. Subclause 2(2) says that Bill C-262 cannot be interpreted as delaying the application of UNDRIP in Canadian law, and clause 3 talks about UNDRIP being an international human rights instrument having application in Canadian law. I would like to know if our guests here agree with those two.

Maybe we should start with Justice Slade.

[The Chair, Liberal, MaryAnn Mihychuk]

We have a minute and a half.

[Justice Harry Slade]

Others may have more to say, but I agree with them.

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

Mary Ellen.

[Mary Ellen Turpel-Lafond]

Yes, I think it's very helpful, because we've had the quagmire that sometimes comes up around fundamental denial of rights, so I think it's extremely valuable to have that, because it's affirmative. Is it superfluous? No. It's affirmative, and it's important to be affirmative.

[John Borrows]

I have nothing further to add.

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

Thank you.