Indigenous and Northern Affairs Committee on March 1st, 2018

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

I have on hand the English version of article 31, which states the following:

Indigenous peoples have the right to maintain, control protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, etc.

[Hubert Lussier]

The simple reason I did not mention it is that it is a shared responsibility between my department and Innovation, Science and Economic Development Canada. That department is in charge of intellectual property issues, and its representatives are not here with me. I think it would have been more appropriate for the two departments to appear together to adequately discuss this issue. That said, my colleagues who handle intellectual property issues at Canadian Heritage are very familiar with this matter.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you. Questioning now moves to MP Gary Anandasangaree.

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

Thank you, Madam Chair. Thank you, panel, for joining us.

I'm just picking up, Stefan, on your assertion that UNDRIP is an interpretative tool with respect to Canadian law. How important is the passage of Bill C-262 for this to be used under Canadian law, right now?

[Stefan Matiation]

I don't think I'm in a position to say how important it is. I would just say that the government has clearly made a commitment that it's going to implement the UN declaration. There are many measures to be taken down that path. A legislative approach like this is one measure among many, as Ana and others have mentioned.

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

Would you say it's an essential component of implementing UNDRIP or could it be done without legislation?

[Stefan Matiation]

I would suggest that it's a measure, a possible measure. I wouldn't make any judgment as to whether it's necessary or the most important, or any of those things. I would just say that it's a possible measure.

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

Article 34 provides the rights to the indigenous traditional system and customs in accordance with international human rights standards.

What work is being done currently in order for us to move towards that approach?

[The Clerk]

I would say that, along with languages, culture, traditional systems of decision-making, and governance, more and more the discussions around revitalizing traditional systems of indigenous law and understanding those systems are definitely at the heart of a lot of the conversations that we are having, across the country at various tables. We are looking at both different concepts around self-determination and how different communities are seeing that, as well as self-government.

There's certainly work going on in different parts of the country that is looking at some of it. What I try to get to is, our agreements that we enter into with indigenous governments and nations really should be seen as bridges, between their indigenous perspective, culture, language, systems of governance, decision-making, and law, and Canada's, at the federal level.

If we're going to have agreements that truly work as bridges between these systems, then it's important that we take the necessary steps to help indigenous communities and nations who have to overcome the 150-plus years of colonialism to actually understand what those concepts mean for them in today's world.

There are many who do. I don't want to suggest, in any way, shape or form, that no indigenous nation actually understands those things. Many understand in profound ways, but there are many who are struggling to recapture a lot of things that have been lost, damaged, and harmed through the legacies of assimilative practices that governments have adopted over many decades.

There is work going on. There are law schools in the country that are working closely with communities to help, looking at revitalizing and actually memorializing in writing what their systems of law actually are. Then we're looking at those to figure out how to have an agreement, as we're looking at self-government, that can work within that system of law, as well as our own.

I think that these are really important pieces of work.

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

With crown-indigenous relations, I think you've undertaken the process of separating into two different departments. There appears to be a significant shift in approach, particularly with the recognition of rights approach.

With respect to Justice, on the litigation side and with respect to ongoing discussions, has that been transformed? Has the transformation taken place in Justice, or is that still at an early stage? Based on what the Prime Minister has committed to and where, as a government, we're going, some of the criticism we get is that Justice is far behind, whether it's negotiation or it's litigation, being able to pivot into a recognition of indigenous rights-based approach.

[Ana Stuhec]

We've been working very hard to implement and bring the principles that were announced last summer into our work through the advisory, the litigation, the policy, and the programs within Justice, in terms of changing the lens with which we view the work we do. It's an ongoing project, and we're making progress, but there continues to be work to do.

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

To department of heritage, I know that language is an essential component of UNDRIP and ensuring protection of [Inaudible]. One of the things that keeps coming up is we have a duality in terms of Canada with respect to English and French. Parliament would be a perfect example where this issue comes up. Where would the use of indigenous languages be protected in your estimation and what does Parliament need to do in order to have certain rights enabled within the systems of our domain?

[Hubert Lussier]

I'll answer that on two fronts.

First of all, the piece of legislation that we're co-developing is what I would describe as an enabling legislation. We will create a commitment, we will abide by the commitment, to support indigenous languages financially and through other means if possible. Second, it won't conflict with the rights and obligations created around French and English, which are the official languages of the country.

Whether we go beyond the current varying, minimal type of services in indigenous languages that are currently provided by federal institutions will be determined later.

[The Chair, Liberal, MaryAnn Mihychuk]

Questioning now moves to MP Cathy McLeod.

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

To recap from the first round, this bill will commit us to changing the laws to be consistent with free, prior, and informed consent. We don't have a clear definition of what consent is and we don't understand how we're going to get consent from Métis, Inuit, and the first nations from across this country, so we're moving ahead with something that has some important unanswered questions.

I want to go again to Justice and into another area. In the Supreme Court of Canada, Department of Justice lawyers, on January 15—and this was after there had been a commitment to implement the UN declaration—stated that the idea that Canada needs to expand the duty to consult to be in line with our international obligations, including UNDRIP, then “fails to reflect that Canada's consultation process is consistent with international standards.” They argued that the duty to consult is firmly established in existing Canadian jurisprudence and that UNDRIP does not change that.

Is that the position of the department?

You had the minister and the Prime Minister commit to implementing the UN declaration. You have your Justice lawyers in court arguing those statements. To me, they seem completely unaligned. It seems to go to Mr. Anandasangaree's comment that although this is a tool, there's nothing that precludes the government, if they were serious about what they were doing, to be arguing a completely different track.

If they were serious about the UN declaration, why are those comments being made in court?

[Ana Stuhec]

The Supreme Court has interpreted section 35 of the Constitution Act broadly. Section 35 should be viewed as a full box that includes the protections offered, including the duty to consult, so the Canadian courts have developed a robust framework for a meaningful recognition protection of section 35 aboriginal and treaty rights.

What the UNDRIP does is it's consistent with the existing framework, but it allows us to fill the box to ensure that it's as robust and meaningful as possible.

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

We had two bills tabled just recently, Bill C-68 and Bill C-69. The government has committed to the UN Declaration on the Rights of Indigenous Peoples. Certainly, there are parts of those bills that talk to indigenous rights, but there was no language included in terms of the UN declaration, so despite the government's commitment to indigenous peoples in Canada, it tabled two important pieces of legislation that made no mention of these concepts, other than perhaps that they are going to aspire to getting this.

Can you tell me why was that missing from those pieces of legislation? I would presume that the justice department reviews these pieces of legislation in terms of these overarching commitments by the government.

[Stefan Matiation]

I would say that I don't think we're in a position to speak to the decisions that would have been made in getting to that in those particular bills.

I do want to reiterate that the UN declaration implementation is a process that engages many parties, obviously including indigenous people. It will be a collaborative process that will take some time and some effort, and various mechanisms will be used in pursuing that.

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

In 2016, the justice minister said:

Simplistic approaches such as adopting the United Nations declaration as being Canadian law are unworkable and, respectfully, a political distraction to undertaking the hard work actually required to implement it back home in communities....

I would presume that the justice minister has at her disposal many comprehensive briefings. This was a planned speech, so what has changed such that something that was unworkable in 2016 is now quite workable in 2017-18?

[Ana Stuhec]

A range of options are available for implementing the UNDRIP. The legislation itself may be viewed as a simplistic approach and stuff, but the ability to do a holistic multi-faceted approach using various mechanisms does allow for that, and I think we're just allowing for that.

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

To get into the natural resource sector section, for something like a pipeline such as Kinder Morgan, even if 50 communities said yes, and one community said, “No, I don't give free, prior, and informed consent,” my colleague, Mr. Romeo Saganash indicated that he felt the implementation of the UN declaration should preclude moving forward, unless you have free, prior, and informed consent from everyone. Do you agree with that perception of it?

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

Fifty?

[The Chair, Liberal, MaryAnn Mihychuk]

We're moving on. That took much longer than a very short question.

We're going to move to MP Bob Bratina.

[Bob Bratina, Liberal, Hamilton East—Stoney Creek, ON]

Thank you.

How has UNDRIP been working since its implementation in 2007? Has there been an overview of how it has functioned, what the shortfalls have been, and how they can be made better?

[Stefan Matiation]

Again, I think the key thing with the UN declaration is that it is an aspirational document that describes the rights of indigenous peoples, and it describes various means that need to be undertaken in order to achieve implementation. That is a process. It does take time, and as has been mentioned, it does require some hard work.

You've heard about some of the progress and some of the different ways the departments have been working toward implementation, and working with indigenous peoples toward implementation. It is going to be at least what I think of as a bit of a national undertaking that engages indigenous peoples with all Canadians and all governments, basically in a process aimed ultimately at reconciliation.