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

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

Thank you very much.

With regard to free, prior, and informed consent, there is also the example of the James Bay and Northern Quebec Agreement, which I am more familiar with, since I am from Quebec. The same uncertainties and questions arose in that context. Today we are talking about pipelines and climate change, but back then, forests were also an issue. There were concerns about the impact that the agreement would have on the forestry industry. However, today the situation is relatively healthy.

What arrangements, compromises, or deals were made to attain the balance we see today?

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

Thank you for your question.

It is important to understand that recognizing the rights of indigenous peoples in no way endangers the environment or the economy of our country, even though we are heavily dependent on the natural resources found not only in Quebec, but across the country. Most of the non-indigenous communities in my riding depend on the development of local resources.

The rights of the Cree have been recognized and respected. That is why we have been able to negotiate partnerships for more than 40 years. The preamble of my bill and the United Nations Declaration on the Rights of Indigenous Peoples state that respect, partnership, and co-operation are the basic principles of a good relationship between peoples.

In order for two peoples to make progress, the most important thing is for them to have good relations. It is vital to clarify things and to establish very clear rules. That is the purpose of my bill, to clarify the existing rights of indigenous peoples. That way, all industries and everyone will know what rights we are talking about.

That is what happened in the case of the James Bay Cree. The James Bay and Northern Quebec Agreement clarified the situation in relation to the environment and sustainable development. It clarified who had the right to develop the land and how that development could be done. That helped make everything else clear. That is what we are seeing in northern Quebec.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Questioning now moves to a shared time between MP Bossio and MP Amos.

MP Amos is to lead.

[William Amos, Liberal, Pontiac, QC]

Thank you, Madam Chair.

Meegwetch, Mr. Saganash. It is a pleasure to have you here with us. I know that we are not the only ones who are proud of you. All of Canada is proud of you too.

I do believe that history is going to look favourably upon all of your efforts, and I'm proud to be here asking questions.

I want to ask a question to follow on this theme around Quebec and the way that this might impact the rest of the country. As we know, the crown has provincial and federal aspects, and laws go beyond just constraining a particular government. They change cultures. One can presume that this bill, if passed, would have repercussions across a variety of jurisdictions. I want to hear your opinions on where you see this bill impacting not only the manner of behaviour of the federal government, but also our provincial and territorial governments.

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

I think it will have a positive impact on indigenous people, certainly, but for the rest of Canadians as well. I want to reiterate one point I mentioned before going more precisely to your question. At one point during the process of consultation throughout the country...but also certain of your ministers and colleagues, the Minister of Crown-Indigenous Relations, asked the following question: is there a precedent around the world for this kind of legislative framework for indigenous human rights? The answer is no.

I'm glad she posed that question, because Canada was the former human rights champion around the world. We lost that credibility for some reason over the past years. That's what other countries expect from us. That's why other countries are looking to Canada to take the lead on the recognition, and not only recognition but also respect for the fundamental human rights of indigenous peoples. Nothing less is expected from us. That's why we need to go in this direction.

Having this framework in place, because that's what the Truth and Reconciliation Commission has called on us to do, is delivering on that call to action. For a long time, given that our rights were not clarified in any document, this is what this bill and UNDRIP does. I think it was important to have that in place for the future. It will avoid a lot of legal battles in the courts. I think that's certain, but it will also provide that intention we need to bring whenever we consider legislation that will impact the rights of indigenous peoples in this country.

We already have an obligation under the Department of Justice Act, section 4.1. The Minister of Justice needs to make sure that the legislation, before it is tabled, is consistent with the Charter of Rights and Freedoms. We don't have the equivalent for aboriginal and treaty rights. This bill will do that too.

[William Amos, Liberal, Pontiac, QC]

Before I cede the microphone to my colleague, I want to ask a very quick question. I expect he's going to want to follow on the same theme.

I simply want to ask this, and as a witness here you know you're able to submit further written comments. I'd be interested in hearing your articulation of the distinction to be drawn between free, prior, and informed consent and a veto. I think every student in this country ought to be able to understand that and be able to distinguish between them.

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

Absolutely. I think the distinction is an important one and we need to understand that in this country. The right to free, prior, and informed consent, like all human rights, not just the human rights of indigenous peoples, is a relative right. You need to balance that right with the rights and interests of others, which veto does not do. Veto is an absolute thing, and I don't think our court system, constitutional or otherwise, would ever take that kind of view. That's not how our Canadian legal system works and that's not how the international law system works either.

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

We'll just ask the real questions that I wanted to get to. I'd like to also reiterate, as everyone says, that it's been a real honour working with you since coming to the House. You have actually been a really strong mentor for me as well. On the odd trips that we've taken together, I've really enjoyed our conversations and a lot of it has always revolved around this right.

I remember the first time I had that first aha moment of “Oh, okay. This is really at the crux of FPIC: How do we reconcile consent and veto?”

I would really like to hear any other words you'd like to share on that. To me that answers the crux of the situation and I think it is something the Conservatives have really shown is of tremendous concern to them.

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

I can tell you one thing. The right to free, prior, and informed consent is now embedded in international law, and in particular in the right to self-determination of indigenous peoples. It's already there.

Although our Supreme Court has not used the expression as it is used in the UN Declaration on Rights of Indigenous Peoples, I think there are elements in different rulings from the Supreme Court of Canada that confirm this right already exists in our constitutional law system—in many constitutional decisions by the Supreme Court of Canada.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Questions will now go to MP Waugh.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Thank you, and congratulations. I'm sure, for you, it's been a lifelong dream to be here, and last week to get it passed.

It was interesting when you were mentioning different rulings, different elements. I think that's where the confusion is from the Supreme Court. We're getting mixed messages. It's not all what you just said. We're getting some mixed messages out of environment, out of fisheries.

Could you maybe just comment on that, if you don't mind? I don't think it's as cut and dry as you have expressed in the first 45 minutes in front of the committee here.

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

You'll have to give me a more particular example if you want me to answer that.

I think over the years there have been many decisions. Of course, like any court, they might at times contradict themselves from a previous ruling. That's unfortunate because that's not supposed to happen, but it does happen. We're all human I think, and we need to recognize that.

The trend has been very strong over the years, on many of the aspects we're discussing and debating today, especially with respect to our rights over our lands, territories, and resources. I take the time with decisions coming down from the Supreme Court, even with decisions that have nothing to do with aboriginal treaty rights in this country, to go over them. At times, the Supreme Court clarifies previous judgments, and it elaborates on certain constitutional principles at times in other rulings. It's important for people who are interested in constitutional law to follow those kinds of constitutional principles, which we get from the Supreme Court of Canada. I've always done that.

One of the important rulings for me was the Quebec secession reference case, whereby the Supreme Court determined in its opinion that political actors in this country, as we normally understand it, are not just the federal government and the provinces. It also must include the indigenous peoples of this country at all times in the discussions. As with my human rights, which are relative and not absolute, and the division of jurisdictions between the federal government and the provinces, we know in our system it's the provinces that have jurisdiction over natural resources. Again, the Supreme Court has clearly said that although the provinces have jurisdiction over their natural resources, that jurisdiction is not absolute because there are aboriginal rights and treaty rights over them.

I think the general strong trend has been in that direction throughout the years.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

There's confusion with free, prior, and informed consent. We saw that last week when the Liberals voted with your private member's bill—

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

Good on them.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Yes, but the next day, with Bill C-69, they didn't mention free, prior, and informed consent.

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

I think the confusion there—

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

It's a confusion for all of us, though.

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

No one explained it to me, but I think it's partially because the bill has not passed third reading and does not have the royal assent yet. From thereon, as I explained, I think we'll have that legislative framework for future legislation.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

That's your interpretation.

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

Let me finish.

The other aspect of all this is that if you read subclause 2(2) and clause 3 of Bill C-262, both talk about the UN declaration having application in Canadian law as we speak. Maybe you don't agree with it, and maybe they didn't realize that, but having this bill passed in third reading and through the Senate, we'll be clear on that for the future. I think that is what is needed in order to avoid that confusion.

Similar confusion was created when section 35 of the Constitution was adopted. What is the content of section 35 with respect to aboriginal rights?

Similar confusion was created when the James Bay and Northern Quebec Agreement, the first modern treaty, was signed in 1975. I remember those conversations. In these hunting and fishing associations throughout the province, people said, “Well if we're going to recognize the rights of the Cree and the Inuit to be able to hunt, fish, and trap throughout the year, without conditions, then there goes the entire moose population, there goes the entire caribou population, and there go all the fish in our lakes in Quebec.” Well, guess what. It never happened.

It's a similar situation here, in my view. Those rights exist because it is said that they are inherent, which means these fundamental rights exist because we, as people, exist right now, here—I'm talking to you, right?—and those are our inherent rights.

That does not create new law in any way, and it does not create new rights in any way. They already belong to me and my peoples.

[The Chair, Liberal, MaryAnn Mihychuk]

We will now go to MP Anandasangaree and MP Harvey, who are splitting their time.

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

Thank you, Madam Chair.

Mr. Saganash, I just want to reiterate, for my colleagues here, the enormous admiration we have developed for you and the great work we see you have done in bringing UNDRIP to the forefront in Canada.

Over the years—at least for the last 10 years—at every UN meeting, the lack of Canada's acceptance of UNDRIP has been pointed out, both by the UN Human Rights Council and in many other international fora.

I want to just pick up on one thing you said earlier, and then ask you a question.

One is that you indicated that indigenous rights are human rights. What I notice, as we mark the 70th anniversary of the Universal Declaration of Human Rights, is that it's somewhat curious that indigenous rights were not enshrined in the universal declaration. We see that development in Canada. We had the Canadian Charter of Rights and Freedoms and the Constitution Act of 1982.

I'm just wondering if you could give us a sense as to the evolution of indigenous rights as human rights. Going forward—whether it would be through and from the TRC or through case law—how do you see the framework you're proposing as impacting the development of policy and legislation in Canada?

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

Thank you for your kind comments.

I think it needs to be repeated that the rights of indigenous peoples have been treated as human rights in the international fora for over three decades now. They have always been treated as human rights at the international level. I have to point out again and insist on the fact that the UN Declaration on the Rights of Indigenous Peoples had been adopted by the UN General Assembly in 2007. It's been a decade now. I think we need to move on and do what we need to do in this country.

I think the first step is to recognize that these rights are human rights. The right of indigenous children to have a roof over their head is a human right. The right of indigenous communities to have clean drinking water in their communities is a human right. The right to have a toilet in those houses is a human right and so on. That's one aspect.

The second part of it is, as a lawyer, you probably know the way our court system works in this country. Judges and tribunals in this country are impartial institutions and people, and they can decide whether to apply the rights that we find in the UN declaration in their rulings or as references. It happened as early as 1987. The Supreme Court in that case referred to international human rights documents, and in particular, declarations, to interpret domestic law. That's why it must be said that although the UN Declaration on the Rights of Indigenous Peoples does not necessarily have the same binding effect as international treaties or international conventions—sure, that's true—but it does not mean they don't have legal effect.

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

Do you think the proposed legislation, Bill C-262, goes far enough? Is it sufficient for the implementation of UNDRIP, or does the government need to do more to ensure the full realization of the declaration?

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

I think it has a pretty strong basis already. We can move forward from here even with that piece of legislation but if the government wishes to change free, prior, and informed consent into a veto, that's their business. I don't think indigenous peoples will be against that. Sure, there are possibilities to strengthen Bill C-262 in many respects. I've always offered my assistance and my collaboration to continue from here on. I don't deny that Bill C-262 has a very strong basis going forward in the right direction with indigenous peoples in this country. Let's pick it up from here, but I think the bill needs to be adopted first.