Indigenous and Northern Affairs Committee on Nov. 30th, 2017

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

We're already at four minutes, and they've only let me get in one question.

Article 19 of the UN declaration suggests the government get free, prior, and informed consent before adopting and implementing legislative measures that will affect them. Can you illustrate for us how you would apply this provision? Is it going to apply to laws of general application, which of course means all Canadians, or only to laws that are exclusively related to the first nations?

I think this is very important for everyone to get an answer to.

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

I believe the issue of free, prior, and informed consent is hugely important, and it was intended for those laws that affect indigenous people. However, I believe that as we go forward and as more indigenous people live in urban centres, the voices of indigenous people—as they are the fastest growing part of the population—are going to be hugely important in our getting everything right, including our maybe using indigenous law to better look at any laws and practices in order to do better than what we've done in civil and common law in this country on some of the more complicated issues.

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

Article 26 says that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” How do you intend to implement this?

Again, we're looking at the UN declaration, and you've made a commitment to implementation. This has vast ramifications throughout Canada. These are important questions not just for first nations to hear and understand your intention, but for all Canadians. Certainly I look at the Northern Shuswap treaty that you talked about and the Tsilhqot'in. In both cases we have other Canadians who also need to understand what's happening and where we're going to go forward. I'll look at tourism. All of a sudden we have the tourist operators in the Tsilhqot'in landlocked. I look at some of our ranchers who have been significantly impacted by the comprehensive planned treaty for the Northern Shuswap.

I think a very clear answer is important for indigenous communities, but it's also important.... I don't think your government has done a very good job of articulating. You're going to support Mr. Saganash's bill, and you haven't articulated to indigenous people and Canadians what exactly that's going to mean. It's going to be important for everyone to understand.

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

Thank you for that.

[The Chair, Liberal, MaryAnn Mihychuk]

You have just over a minute to respond.

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

I think we have been very clear that free, prior, and informed consent is not a veto. It means you have to work very hard at the earliest part of a project to try to work together to find an outcome that is mutually acceptable. That is the way indigenous groups are seeing themselves in the project.

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

They do see it as the veto, though.

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

I think the national chief has been pretty clear that it's not a veto.

[The Chair, Liberal, MaryAnn Mihychuk]

You have 30 seconds left.

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

Thank you.

Again, I think before supporting Bill C-262, a very descriptive...of each article, what it's going to mean, how you plan to implement it.... With Bill C-262, we recognize it as a very important document. We recognize that there are many things that need to be done, but the actual implementation, as the minister said, needs to be articulated to Canadians because what you're saying is hugely important.

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

I think as we move forward on a recognition of rights framework, those consultations that we will have, not only with indigenous people but with all Canadians, will be hugely important as we move forward to decolonize and actually explain to Canadians what indigenous rights really mean, and why it makes this country stronger.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Questioning moves to MP Charlie Angus.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Chair. It's an honour to be at your committee.

[The Chair, Liberal, MaryAnn Mihychuk]

You're welcome.

[Charlie Angus, NDP, Timmins—James Bay, ON]

It's an honour to have the two ministers. I have enormous respect for the hard work that you do.

I don't want to sound gruff this morning, but since I only have seven minutes and we have so many things to talk about, I'll try to keep things moving.

I want to start off, Minister Philpott, with the, I think, extraordinary news about Grassy Narrows and the commitment there. I have to say, though, talking to the community— 50 years of broken promises—people want to know this is going to happen. Grassy Narrows says they can get the shovels in the ground to get this treatment centre in the spring. What do you see in terms of the timelines of responding to their needs and getting this really important facility built?

[Jane Philpott, Liberal, Markham—Stouffville, ON]

Thank you for the question. I obviously want to acknowledge all members for their advocacy on these issues, but it's no secret that you have been an exceptional advocate on behalf of the rights of indigenous peoples for a very long time, so I want to thank you for that.

In terms of Grassy Narrows, you're right. Again, a story of 50 years of impacts to a community through no fault of their own, tremendous impacts from the environmental contamination that took place in the 1960s and to some extent has continued since then.

We had a very good meeting yesterday with the chiefs and communities of both Grassy Narrows and Wabaseemoong. They had a number of requests to us. The one I was able to answer immediately that day was that we will make sure they get the treatment centre that they want, need, and have been asking for, for a very long time. I know they obviously wanted it years ago, so we are going to work very ambitiously on that timeline. I have assigned one of my assistant deputy ministers to work on this directly with the community, and we will move things along at the most rapid speed possible.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you very much.

Minister Bennett, the issue of St. Anne's residential school remains one of the unresolved horror stories of Canada, yet we have lawyers from your department in provincial court fighting survivors on cases. The factum of the federal government says that their right to procedural fairness is not applicable to residential school survivors.

Why don't you believe that the survivors of St. Anne's have a right to procedural fairness?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

First, Charlie, I also want to thank you for all of the amazing advocacy that you do.

Yesterday, when we had our interchange in the House, I misunderstood which of the cases you were talking about. I think you know that we are committed to ensuring justice for all of the victims of this dark chapter in our history—all childhood litigation, all residential schools, and particularly these cases that still remain outstanding.

What we have to be clear about is that the government is not challenging any of the individual claimants in this matter, nor the outcomes of their cases. The overarching goal is to ensure that victims receive the compensation they are rightly owed for their pain and suffering. There needs to be some integrity to the system.

What's been happening up to now is that the adjudicator has been making inconsistent and at times contradictory decisions when applying the legal concept of procedural fairness. We have asked the court for the guidance, for the correct interpretation of procedural fairness. We actually want their guidance in how we go forward to make sure the system is fair and everybody gets what they need.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I think the problem is that lawyers for your department have taken the position, “There is simply no place in the IAP for the administrative law concept of procedural fairness.” Procedural fairness is a fundamental principle of law, yet your officials are saying that this does not apply in the case of St. Anne's. They further state, just your lawyers state, that the chief adjudicator is relying on a “bald proposition” that the obligation to ensure a fair process for claimants “falls on all parties”.

The one party here is the Government of Canada, which chose to suppress 12,000 pages of police evidence, witness testimony that identified 200 perpetrators of sexual crimes at St. Anne's. The other party are the survivors who have no resources, so why is it that you would have lawyers in court saying that their right to procedural fairness does not exist?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

Firstly, I think you know that Justice Perell has said that we have released all the documents that were required. I think that is settled. I think what we are now doing in court is determining what the actual definition is that could be implemented on procedural fairness in cases because of the adjudicator using it differently in different cases. We need guidance so we can achieve fairness for everybody.

[Charlie Angus, NDP, Timmins—James Bay, ON]

The problem is that lawyers for your department now are in the hearings saying that the evidence that you were forced to turn over is inadmissible unless they can provide a survivor witness, which revictimizes the survivors who've gone through this, and then they claim that they have no right to procedural fairness.

Minister, this goes back to the decision that was made high up to suppress evidence, and for the life of me I cannot figure out why this was allowed to happen when you had the names of the perpetrators and when your officials knew who they were. You had cases thrown out because your lawyers said those survivors had no credibility because they weren't believable, yet you had the names of the perpetrators. Why would Canada do that?

[The Chair, Liberal, MaryAnn Mihychuk]

We'll have a very short answer, please.

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

I believe that Justice Perell has made it clear that all the documents that were required or all that they expected have been submitted.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Why is there complicity? The question is the complicity of Canada. Why?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

The law is the law, and in so many cases, Charlie, we are going way beyond what the law asks us to do. In so many cases, whether it's Anderson or because Labrador and Newfoundland weren't in Canada yet, we are settling that case.

I believe that our approach, as a government, is to do the right thing, not to just do what the courts tell us to do. In fact, we are expending much of our efforts getting out of court and to the negotiating table, so things like the sixties scoop get language and culture, get apology, get commemoration, get healing. Those are things that courts can't award and that's why we're trying to get out of court on as much as we can.