Indigenous and Northern Affairs Committee on Oct. 19th, 2017

[Justice Harry Slade]

They shouldn't wallow around talking to each other. They should just get it done.

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

You said you were getting more cases. You have 90 on the deck at present. Where are you right now in terms of the work?

[Justice Harry Slade]

There are around 68 that are active. The 90 include cases where there have been decisions one way or the other.

The difficulty is accessibility to the tribunal. If we cannot get into negotiation and mediation, then every claim is going to have to run the whole course. It's turned out that this costs a lot of money, and the funding isn't there for it. I think that will forever impair the ability of claimants to come to the tribunal. We need to have a process, or at least some reason, to give the claimant community the belief that we can actually move expeditiously. Right now, we can't do it.

Also, due to the lack of transparency in the policy-based process, we have to start with a brand new record, and creating that record takes time, costs money, and requires documentary research.

[The Chair, Liberal, MaryAnn Mihychuk]

The questioning goes to MP Saganash.

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

Thank you, Madam Chair.

Welcome to our committee. I've listened carefully to your presentation. There was a lot of stuff that provoked further thought, on my part at least. You mentioned that this is all about reconciliation as well, and that these matters are more justice matters than anything else. I totally agree with that.

Many indigenous people who have come before us mentioned the fact that there's an incompatibility between developing policies in this country while our relations with indigenous peoples are constitutional in nature, either through treaty or as indigenous people in their constitutional status in this country. I believe the same in that sense.

You mentioned article 27 of the United Nations Declaration on the Rights of Indigenous Peoples, which is an article I refer to a lot as well. The Truth and Reconciliation Commission, in its calls to action 43 and 44, refers to UNDRIP. Call to action 44 talks about developing a national plan in conjunction with co-operation with indigenous peoples, but call to action 43, in a way, is the core call to action, whereby the commission calls on the Government of Canada, the provinces, the territories, and the municipalities “to fully adopt and implement the [UN] Declaration on the Rights of Indigenous Peoples as the framework for reconciliation”.

Would you agree that it's I think the basis we should be looking at from now on? The new government has been open to that question and has promised to adopt and implement the UN declaration. Would you agree that this committee should be looking in that direction?

[Justice Harry Slade]

You're getting me into a dangerous area for a judge, but I could retire any time, so you can always take a little risk.

With one qualification, I would support that idea. The qualification, however, is that if governments adopt UNDRIP as a framework, at some point they're going to have to deal with the question of free, prior, and informed consent.

Free, prior, and informed consent does not conform to the Canadian common law, because even where title is either proven or recognized—by treaty, say—there's a test for justification of infringement of a right. With respect, that is a product of decisions of the Supreme Court of Canada. There's a basic wisdom in it, because we are a nation of 35 million people drawing on a single resource—the land—and government, in my view, has to retain the power on exercise of provincial and federal jurisdictions to make decisions in relation to the land and resources in the public interest.

As I see it, the decisions of the Supreme Court of Canada create a proper balance, so your political statements based on free, prior, and informed consent are not at all helpful to this discussion. They give spokespersons a soapbox to stand on and hold this up as a golden standard that, if not achieved, means Canadian law—Canadian society—is fundamentally unjust, and that, I say, is nonsense.

As a framework, sure, but I come back to article 27. I don't know why nobody but me seems to mention it. Perhaps I'm missing something. As my wife says, “That's entirely possible, Harry.” It talks about crafting a process in consultation with indigenous groups. That, to my mind, is where you start.

Let's face it: most of UNDRIP really has long since been operable in Canada. It really comes down to the question of land and resource rights. Now, to get to that, you have to undo the Indian Act system. Sir John A. Macdonald in 1885 said that they were going to destroy tribal governance. How were they going to do it? Through the Indian Act. Read the tribunal decision in Beardy's v. Canada. It's one of mine. I addressed that.

The Indian Act has balkanized the indigenous nations in such a way that often—with respect—they don't even know who they are. In British Columbia, there are 234 bands and probably 23 nations. Why do you think we have all these overlapping claims? Because you get this group and another one 20 miles down the road; they're the same people, but they think they're different because they're two different bands. After 150 years under the Indian Act, it's not surprising, is it?

We need a process that enables these aggregations to define the indigenous groups, identify the territories, and bring about modern treaties. That, to my mind, is the real value of UNDRIP. It calls for that.

[The Chair, Liberal, MaryAnn Mihychuk]

All right. We have to move questioning to MP Gary Anandasangaree.

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

Thank you, Madam Chair. I want to pick up from where my colleague left off with respect to UNDRIP.

In regard to your comments, to be honest, I'm a little surprised that with respect to implementation you would perceive it in such a way. We are in a process whereby the government has committed to implementing UNDRIP, and we have done so on a number of occasions, including the 10th anniversary of the UN Declaration in New York earlier this year. In your perception, what kinds of legislative tools will be required, if any, for it to be fully implemented within the Canadian legal system?

[Justice Harry Slade]

What kind of legislation? If we're looking at implementing recognition of indigenous groups and their territories, I don't think it's for government to do that legislatively. I think the indigenous groups have to define themselves, but there needs to be some connection to that collectivity that at common law could have a claim to be an indigenous nation.

It's not as difficult as you might think, but let's say the government said, okay, we're not going to allow the approval of a pipeline unless we have indigenous consent. Well, whose consent? Which group? It's—

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

When you have a legal system that's fundamentally problematic and flawed in many ways because we have legalized racism in the last 150 years and in many ways have affected many of the relationships that exist today, how do we revert back to the common law itself for guidance on something like this?

[Justice Harry Slade]

I'm certainly not going to endorse the idea that we have legislatively based entrenched racism. What we have in my view is the colonial legacy of racism that has produced the reserve system and has thoroughly marginalized indigenous peoples.

Indigenous peoples as individual Canadians have the same rights as everybody else, so where is your race-based legislation that says any differently? It's the legacy of colonialism that's still being played out by the Indian Act that has resulted in the impoverishment of indigenous peoples. Some argue that the Indian Act provides for indigenous peoples that which is not available to others, and the fact is that it does, so—

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

Some would argue that the outcomes speak for themselves. Yes, the Indian Act is one aspect of it, but certainly, if you look at the plethora of evidence that exists with respect to socio-economic indicators, I think you could conclude that there are some very significant effects of it, and it does have a racialized impact, particularly towards our indigenous population.

[Justice Harry Slade]

I suppose if it helps the discussion to call it “racist”, then call it racist. I don't see how it helps the discussion. For one thing, I don't see why demonizing non-indigenous people contributes anything to the discussion, which, of course, is happening. I think what we really need to do is get down to work and find real solutions to these problems and stop calling each other names.

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

This is where I think something like UNDRIP can have a very important dimension in the relationship. I think Canada's commitment to implement.... I'd be very curious in terms of your position to hear how that could be devised within the legal system, but I think we may have exhausted this line of conversation.

[Justice Harry Slade]

It would start, in my view, with re-empowering the indigenous nations and getting out from under this idea that a band is a nation. The term “first nation” is a conflation of the idea of an indigenous nation into something that the government created, but of course it's politically correct. It is really nonsense. Nation-to-nation with a group of 20 people...? Please.

It seems to me that federal policy on program delivery could bring about the aggregation of communities of like culture and language. Maybe that's a place to start. Build capacity and reconstitute these aggregates by culture and language.

Foster the recreation of indigenous governance that the Indian Act destroyed, but in a modern context. To my mind, that's where government could go legislatively to turn this particular ship around. Because if you can define the groups and the territories, you're halfway there, or maybe three-quarters of the way there. Then you can take on the question of free, prior, and informed consent when you know whose consent might be required. You can craft treaties that ensure that not one group or the other holds all the cards.

[The Chair, Liberal, MaryAnn Mihychuk]

That concludes the time allocated, but we do have one final round of questions from MP Viersen. It will be a bit shorter than the full five minutes.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

That's making up for the last time, Madam Chair. Thank you.

Thank you as well to our guests. This has been a very interesting conversation.

I'm going to go quite a ways back in this conversation. You talked a bit about timelines. I know that from other studies we've done, we've talked about hard timelines as well. Would you recommend, when it comes to comprehensive land claim agreements, that there be a timeline, in much the same way as the timeline when you bring in a pipeline approval process? There's a timeline to it and you get a yes-or-no kind of thing.

[Justice Harry Slade]

The problem with timelines is, what if they don't get met? Where do you go then? The Nisga'a treaty took 25 years. To my mind, the issue is, how do treaty negotiations get moved along when they're policy based and one party to the negotiation created the policy? That party has all the power, and that's not good.

What we see in Australia and New Zealand are tribunals that can't order an outcome but that have powers under the Inquiries Act. They can make sure everybody is at the table who needs to be there. In Australia, the federal authority even did it without an assigned constitutional power in relation to indigenous peoples. Our Constitution has that in section 91(24).

To my mind, the way to break this impasse and to move things along is to create a body to oversee the resolution of indigenous territorial resource and governance claims, including giving effect to the spirit and intent of historical treaties. What happens in Australia if there's an agreement is that it becomes contained within an order of the court. I can send you a couple, if you like.

As resistant as I am to process, it's only policy-based process. I think you need a process that's driven by the legal tensions and designed to address those tensions. I think we actually have it with the tribunal; however, if you get one party that isn't really going to listen to experienced judges who say they really should be negotiating, then you can't get very far. You're into a long process that costs a lot of money. That's not good.

[The Chair, Liberal, MaryAnn Mihychuk]

You have more time.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Thank you, Madam Chair. Just yell at me when my time is up.

I assume that you take cases from across the country. We're looking specifically at the comprehensive land claims. Would you say that there are fewer claims under the comprehensive land claims than, say, the number of treaties, or does it seem to be about the same percentage one way or the other?

[Justice Harry Slade]

It's hard to say. Most of my experience as a lawyer and as a judge is in British Columbia. I actually live there sometimes, except when I'm in beautiful Ottawa. I don't know how many groups would be aggregated to pursue treaty negotiations in British Columbia, but some think it's around 23. I think it's probably more.

What we have now is the BC Treaty Commission—bless their hearts—trying to work without a legislative mandate and with no power and receiving statements of intent from bands. Of course, the band up the street has a statement of intent, too, and it covers the exact same territory, because they're the same people. That's a tough one, yet they manage to bring about some results.

That whole process should be empowered. I don't see how it can be done without federal-provincial co-operation, but I do think that we have enough law now that the feds can say to the provinces, “Come on board voluntarily or we will just do it.”

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

That's a good place to wrap up. At the last meeting we had INAC in, and they indicated that 20 years ago we had 800 cases for specific claims, and now we're down to 770. Small successes, but it looks like you have a long career ahead of you, because we have a lot of work to do.

[Justice Harry Slade]

Yes.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you very much for attending. I'm very grateful for the patience of members. We bent the rules and we were very happy to have you here.

The meeting is adjourned.