Indigenous and Northern Affairs Committee on Feb. 13th, 2018

[The Chair, Liberal, MaryAnn Mihychuk]

Welcome, everybody, to the public session of meeting number 95 of the Standing Committee on Indigenous and Northern Affairs, INAN, of the first session of the 42nd Parliament.

Today we are proud that one of our own is in front of us as a panellist to introduce his private member's bill, known as 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.

Before we start, we always recognize that we're in a process of truth and reconciliation, really initiated by our Prime Minister but even before that by the Conservative government, which initiated a study. As we move through that process, we always recognize the lands we are on. We are meeting in Ottawa, the unceded territory of the Algonquin people.

At this point, the committee is proceeding as normal. Our presenter will have 10 minutes and then after that we'll have a series of questions.

Bonjour and welcome, MP Saganash. It's over to you.

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

Thank you, Chairperson. I'm very happy to be here today and that I was asked to come speak with you. I'm really happy that I'm the first one who's able to talk about this document I presented here in Ottawa. I hope you are going to ask me questions about this document, about what we're going to be doing today. I'm really thankful that you invited me to speak about my thoughts on this. I'm really thankful, again, that I'm here. I'm telling you right now that this document is really big and it's going to help us, not only aboriginal people but the whole nation in Canada. I think it's going to help us a lot in the future. I'm going to tell you why it's like that.

[English]

Thank you, Madam Chair. Those were words of greeting on my part. I was hoping to have my mother with me today, because she wanted to participate and listen in to this important discussion. She was the one who insisted that I go to law school. She is the one who insisted that I continue to defend my people, my land, my territory, and the resources on those lands and territories, and she put it this way. From the outset, she said, if you do this, go to law school, learn about the laws of the country and the world, that will allow your brothers and sisters, those who have chosen to continue with their way of life, to be able to do so on their land, where they come from.

I think that was the balance that we searched for in our families. Some of us had to choose to go to school. Some of us preferred to stay on the land. I want to salute my brothers and sisters who did choose to stay on the land and continue with the Cree way of life. About 30% of Cree still live off the land through hunting, fishing, and trapping. That is why the Eeyou Istchee, as we call our territory, is so important to all of us.

I started the debate in the House of Commons over Bill C-262 by saying that indigenous peoples' rights are human rights. For a long time, over 30 years now, the international community and the international forums have treated indigenous rights as human rights. It's been three decades now. I think in this country whenever we speak about indigenous peoples, we should speak about their rights as human rights as well.

You perhaps may know that the Supreme Court is going in that direction. If you read the Tsilhqot'in case, the Supreme Court refers to the Charter of Rights and Freedoms that we find in part I of our Constitution and section 35 rights that we find in part II of our Constitution as sister provisions. That's the word the Supreme Court uses, sister provisions. Both parts of our Constitution serve to limit the actions of governments, both provincial and federal. I think it's important to remember that.

I think it was important for me to start off by expressing the thought that the rights of indigenous peoples in this country are human rights.

I introduced Bill C-262 because I think, and we all agree around this table, that the time for reconciliation and justice for indigenous peoples in this country has come. I don't think there's anybody around this table who disagrees with that. The idea of a legislative framework does not necessarily come from me. Article 38 of the UN Declaration on the Rights of Indigenous Peoples calls on member states to work on all measures possible to make sure that the ends of the declaration are met, including legislative measures. Article 38 of UNDRIP talks about that legislative measure.

As you all know as well, in the recent past, there was an important development in terms of reconciliation in this country, with the tabling of the Truth and Reconciliation Commission's report and the 94 calls to action. If you read carefully Bill C-262, you'll notice that clauses 4 and 5 are the legislative translation of calls to action 43 and 44.

In call to action 43, the commission called on us to fully adopt and implement the UN declaration as the framework for reconciliation in this country. In fact, it calls on the Government of Canada, the provinces, the territories, and the municipalities of this country to fully adopt and implement the UN declaration—they use both words “adopt” and “implement”—as the framework for reconciliation. Although all of the other calls to action are important, I think the fundamental and core call to action remains 43.

Under the heading “Reconciliation” in the calls to action, you find 43 and 44, and 44 talks about the national action plan that needs to be developed in co-operation with indigenous peoples of this country.

In fact, in the 94 calls to action, there are 16 references to the UN Declaration on the Rights of Indigenous Peoples. That's how important this document is for indigenous peoples in this country, but also for the almost 400 million indigenous individuals around the world who live in more than 70 countries on this planet. I think it was only appropriate that the first legislative step we need to take in that context of reconciliation and justice in this country will remain Bill C-262.

I also mentioned during the debate that I consider Bill C-262 as perhaps the most important legislation that this Parliament of Canada has had to consider in a long time. I want to take that opportunity to welcome the support of the government. I'm hoping that at the end of the day, at the end of the process, the official opposition, Her Majesty's loyal opposition, will also support Bill C-262 as a way forward for reconciliation and justice in this country.

I see that my time is running out, but there was one element that struck me during the debate. It came from the official opposition, whereby adopting this bill would create an uncertainty. As a matter of fact, Madam Chair, I think the opposite will happen. If there's one provision in our Constitution that has created that sort of uncertainty, it is section 35. What did we mean by “aboriginal rights”? We know a little about treaty rights and their clarity in the treaties, but what did we mean by “aboriginal rights”? Does it include the right to self-determination of indigenous peoples? Does it include my right to speak my language in the House of Commons?

Those are the kinds of uncertainties and ambiguities that the adoption of section 35 created. That's why we have ended up most of the time in the court systems, because there was no agreement over the content of aboriginal rights. I think this bill will clarify that. Indigenous peoples have a right to self-determination in this country. The human rights committee back then confirmed that, with articles of the human rights covenants that Canada had signed on to, the right to self-determination applies to indigenous peoples. That was determined as early as 1999.

Madam Chair, I'm looking forward to questions within the next hour, and I certainly hope that I can answer the questions that are put forth.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

We'll open with questions from MP Vandal.

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

Thank you very much, Madam Chair.

First, allow me to congratulate you, Mr. Saganash. I know you have been working passionately on this project for indigenous peoples for a long time. I commend you on your clarity of vision. You have been working on this bill for years.

I understand—and I've only been here two years—that a number of private members' bills very similar to your Bill C-262 have intended to enact legislation to implement UNDRIP in the past, but all have failed to pass at second reading. Can you explain to this committee why, in your view, you think the time has finally come to move past second reading and actually have this legislation pass third reading and become law?

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

There are many things, but I first want to thank the previous MPs who attempted to have similar legislation adopted in the past. I have in mind Denise Savoie and Tina Keeper. My previous bill was defeated at second reading by 17 votes by the former Conservative government, although they had apologized to indigenous peoples and certainly to indigenous people like me who attended residential schools. When you apologize for something on the one hand, you don't continue to deny the fundamental rights of the people who you said “I'm sorry” to on the other hand. That's what happened with the previous government. That was quite unfortunate.

I think that one of the important developments in the recent past was, as I've said, the Truth and Reconciliation Commission's report, and in particular the calls to action. The present government has promised to adopt and implement the UN declaration. I remember listening to Prime Minister Trudeau's first speech to the Assembly of First Nations and the chiefs in assembly back in December 2015. It was one of the important promises he made to indigenous peoples, which he reiterated at that meeting.

I think it was time. In fact, in my cross-country tour, in different communities across the country, both indigenous and non-indigenous, everyone was struck by this, and wondered why, after having made that promise on the one hand, the Liberal government was still not supporting my bill. That was the question: why is that? I think it was a welcome announcement that the present Minister of Justice made last November to support the bill.

Like I said, it's time that we move on. Enough has been said internationally. We've all agreed with the promise that was made by this Liberal government with respect to justice and reconciliation. This bill delivers on that promise.

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

Good.

You've characterized this bill as a significant “first step” towards bringing the Canadian government to true reconciliation with indigenous peoples. I find the phrase “first step” very interesting, so I'm going to ask you this. In your opinion, what further policy or legislation needs to occur on the part of the federal government to achieve full implementation?

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

I used that expression during the debate because I'm the first MP proposing something of this nature, and this is significant. I think that's one part of it.

On the other hand, if we are serious about reconciliation and justice.... I use both words because they go together. There cannot be reconciliation in the absence of justice in this country. That's why I use both expressions. There's been enough talk about reconciliation. I think it is time for us to move on and do something concrete in that regard.

The government needs to be consistent with that reality. If you're saying you believe in justice and reconciliation, then all of your actions need to show that. All of your decisions need to show that. There was no free, prior, and informed consent that was sought in the decision to go ahead with the Site C dam, for instance. That's one example off the top of my head. There was no free, prior, and informed consent from indigenous people for that project. I think the same thing is going to happen with Kinder Morgan. You need to be consistent.

If you support and believe in the UN Declaration on the Rights of Indigenous Peoples, then your policies, your laws, and your decisions need to reflect that exactly.

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

Canada already has, in the context of our Constitution, protection for aboriginal treaty rights under section 35.

How do you see the UNDRIP declaration working in harmony, we hope, with section 35? How do you see that unfolding? Are they going to complement one another? What sort of work needs to be done?

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

That's an important question. I know have 30 seconds. That's a highly critical and important question.

There's no incompatibility between our Constitution and UNDRIP. Don't take my word for it. There are a hundred legal academics, international law experts, who confirmed that back in 2013, I believe. They signed an open letter that confirms that nothing in the UN declaration is incompatible with the Constitution of Canada. That's the starting point. I think a lot of times, they will complement each other.

[The Chair, Liberal, MaryAnn Mihychuk]

Questioning now moves to MP Cathy McLeod.

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

Thank you.

Thank you to my colleague, who has really put a lot of years and passion into not only the work here in Parliament but his work previous to coming here.

We certainly recognize that the UN Declaration on the Rights of Indigenous Peoples and truth and reconciliation calls to action are an important road map for reconciliation and a lens that needs to be applied to what government does.

As you're aware, I have some concerns in terms of what your bill would do. I found it interesting when Mr. Vandal asked about whether section 35 and UNDRIP were going to work together, and he said “we hope”. It certainly showed to me that he had concerns also. It was like “we hope but we really don't know”. That was a very interesting statement.

This came up in the questions and answers, and it's one of these practical things that you worry about. You talk about Site C. There was no attempt to get free, prior, and informed consent. I look at something like the Kinder Morgan pipeline, which has a number of communities, indigenous communities all down the line, that have signed community benefit agreements. I would expect, if you signed a community benefit agreement, that's pretty well free, prior, and informed consent. You have a couple of bands that are reluctant.

First of all, can you talk about how you're going to, in a legislative framework, ever align that type of issue, because we're hearing not everybody...? Maybe I'll just leave it at that.

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

That's an important question. If you read subclause 2(1) in my bill, it says:

For greater certainty, nothing in this Act is to be construed so as to diminish or extinguish existing aboriginal or treaty rights

Let's make that clear first. I think it was important to insert a provision like that in the bill.

Second, to your question, it's an important one, too. You confirmed that there are some first nation communities that do agree with Kinder Morgan, and some won't. We need to make sure that everybody does. That's what the free, prior, and informed consent is all about that we find in UNDRIP.

In that respect, I want to quote—

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

Could you make it quick, please? I did have another question.

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

I'd like to elaborate on free, prior and informed consent, and how it is understood by experts and how it is understood as a right under international law.

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

But was it accurate when you said that you believe this would mean every first nation that could potentially be impacted would need to give free, prior, and informed consent?

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

Absolutely.

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

That, obviously, is a concern. I think article 19 says, “consent before adopting and implementing legislative measures that may affect” indigenous peoples. Of course, it's been indicated, and the minister indicated herself, that it would be laws of general application and not the laws that exclusively impact indigenous peoples. I'll take as an example the marijuana legislation. I think it's pretty clear that there was not even “consult and accommodate” in that particular piece of legislation, never mind “free, prior and informed consent”. As I understand your bill, if we are to implement article 19, first of all, that bill would have required the free, prior, and informed consent of indigenous peoples.

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

I think we need to understand that Bill C-262 provides a legislative framework in this country for whatever we do, including in Parliament. If there is, for instance, legislation that would attempt to replace the Indian Act, the minimum standards are contained in the UN declaration. That's what this bill does. If you want to come back with first nations control of first nations education, then the minimum standards are contained in the UN declaration. That's what the bill does.

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

Would you see article 19...?

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

It applies to the government decision as well.

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

If we implement Bill C-262, article 19 will create some requirements, just as introducing something like Bill C-45 will clearly impact every Canadian. Article 19 would apply, which would trigger the need for free, prior, and informed consent.

Would that be a reasonable assessment of this, that it would have a sort of domino effect?

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

What is good in this present context is that all of the things you're talking about are already constitutional law in this country. For several years now, the Supreme Court of Canada has talked about the need for consent. In the latest Tsilhqot'in case in 2014, the Supreme Court of Canada refers to the concept of consent of first nations over the lands, territories, and resources. Nine paragraphs talk about control of their lands, territories, and resources. Eleven paragraphs talk about first nations having the right to freely determine land use over their territories, on two occasions in that case.

As I said, this is already constitutional law in this country. That's why I say that the UN declaration in subclause 2(2) of my bill already has application in Canadian law. That needs to be understood. Neither this bill nor the UN declaration are creating new rights. These already exist in this country, in our constitutional system, and also in our Constitution.

[The Chair, Liberal, MaryAnn Mihychuk]

Questioning now moves to MP Caron.

[Guy Caron, NDP, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Thank you very much, Madam Chair.

I want to start by saying that I am thrilled to be at this committee meeting with my friend Romeo Saganash. I am happy just to be part of history in the making.

First of all, I hear a lot about free, prior, and informed consent. There is already some legal precedent for this in Canadian legislation. Can you draw or not draw a distinction between what's currently in Canadian legislation and what is articulated in the UN declaration?

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

One needs to understand that when I say it already has application in Canadian law, you'll find in our constitutional jurisprudence a lot of that, the need for consent. As early as 2004, for instance, in the Haida Nation case, the Supreme Court talked about the need for full consent of indigenous peoples in that spectrum of consultation—their “full consent” is the expression used in that case—over important matters that affect them.

I suggest that pipelines are an important matter for indigenous peoples because they have a direct impact on their rights and interests in this country.

Climate change is an important matter for indigenous peoples because that affects their rights and interests as distinct peoples in this country.

It also can be said that since 1975, for instance, the Cree have signed over 80 agreements in James Bay over resources, mining, forestry, hydro development, and so on—over 80 agreements since 1975, since we signed the first modern treaty in 1975. That's free, prior, and informed consent in action in this country since 1975.

I invite the committee to consider the final report of the study on indigenous peoples and the right to participate in decision-making. That was from the Human Rights Council and the expert mechanism on the rights of indigenous peoples. They did a study on free, prior, and informed consent. It would be interesting for this committee to take a look at that document. It dates back to 2011, I believe, August 17, and they outline what free, prior, and informed consent means, and how the element “free” implies no coercion, intimidation, or manipulation.

In the case of Site C, to go back to that, when B.C. Hydro sued the opponents of the Site C project for $4.5 million, that was intimidation. We talk about it in this report. “Prior” implies that consent is obtained in advance of any activity taking place. “Informed” implies that indigenous peoples have been provided with all information related to the activity, and that the information is objective, independent, and transparent. For a long time, Hydro-Québec would submit documents to the Cree only in French, and they know that Cree have English as their second language, so that's not the kind of “informed” that this right implies.

Consent of course implies that it has to be obtained prior to any development activity happening, which, in my recollection and experience in this country, never happens. Usually governments go ahead and approve projects without that consent being obtained. Consent can be given with conditions as well, according to this study, so it's important to take a look at these kinds of studies that are done by experts around the world to help us understand what free, prior, and informed consent means in this country.