Indigenous and Northern Affairs Committee on March 1st, 2018

[Ana Stuhec]

If we can table that, I'd....

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

Okay.

[Ana Stuhec]

It's so I don't misapply the term.

I think what's important in the context of the UNDRIP is that article 38 allows us to actually work on the interpretation together, through a collaborative and co-development approach, with indigenous peoples to determine how these terms are defined and how they're applied. I think what's critically important about the UN declaration is that it allows for that kind of relationship, where we're determining together how these concepts apply.

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

Certainly, from my perspective and from that of many of the first nations communities, there is a very clear interpretation of what consent means. I would suggest that perhaps Pam Palmater is right.

My next area is that this will apply to laws of general application, plus obviously there are significant areas in terms of natural resource development and land use.

In terms of laws of general application, I would take, perhaps, Bill C-45, which is the marijuana legislation. How would you get FPIC—free, prior, and informed consent? If we're going to put it into the law, how are we going to get free, prior, and informed consent?

Clearly, in my opinion, the marijuana legislation is going to affect first nations communities as per laws of general application. The minister has indicated that it applies to laws of general application.

As a department, how are you going to get free, prior, and informed consent for something like Bill C-45? Because you don't have that right now.

Senator Patterson was just in the north. They're very concerned. They said they had no consultation around Bill C-45. Perhaps you could talk about how you are going to get free, prior, and informed consent from Inuit, Métis, and the very diverse first nations across the country.

[Stefan Matiation]

The best way to tackle that question, to clarify things, I think, is just to back up a little bit and speak a little bit about the duty to consult, and section 35. I'll definitely get to your question more specifically. But just—

[The Chair, Liberal, MaryAnn Mihychuk]

You have two minutes.

[Stefan Matiation]

Okay.

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

I have three more.

[Stefan Matiation]

As you know, we have a lot of direction from the Supreme Court of Canada on duty to consult, how it applies, and when it applies. There is a case now in front of the Supreme Court, called the Mikisew Cree case, which does get at the issue of duty to consult in the context of the legislative process.

As you probably know from the Federal Court of Appeal level, the view was that there isn't a duty to consult that applies in that context because of the role of Parliament in taking a bill through. That part of the question, I think, is still linked back to our duty-to-consult framework and the Supreme Court of Canada guidance on the duty to consult.

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

If you're committing to UNDRIP, you're committing to free, prior, and informed consent around laws of general application. We know that you're making the commitment to put it into the laws of Canada. That's very clear. I think we've agreed about what this bill does and what UNDRIP does. So how are you going to get free, prior, and informed consent for a law such as Bill C-45? We're not looking at our existing legal framework; we're looking at a new legal framework.

[Stefan Matiation]

Bill C-262 reinforces the government's commitment to implement the UN declaration.

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

Yes.

[Stefan Matiation]

The UN declaration is the declaration of the United Nations, and its role in Canadian law is to serve as an interpretive tool that courts can use in interpreting legislation and in interpreting Canadian law.

Bill C-262, in section 3, refers to the application of the UN declaration in Canadian law. That's consistent with the way courts can draw on international instruments, like the UN declaration, today as interpretative sources of guidance.

[The Chair, Liberal, MaryAnn Mihychuk]

Sorry. Questioning now moves to MP Romeo Saganash.

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

Thank you, Madam Chair, and I want to thank the witnesses for coming to testify on Bill C-262. Your presence is highly appreciated.

I want to continue on that very question that my colleague, Cathy McLeod, posed. The question we need to ask ourselves in response to that question is, in what way will Bill C-45 affect aboriginal treaty rights? I see very few ways that Bill C-45 will affect aboriginal treaty rights.

You referred to additional measures that would be required to further the implementation of the UN declaration above and beyond Bill C-262. I certainly agree with that. The Prime Minister, on Valentine's Day, made a speech in the House of Commons to which I responded. One of the things he talked about was that necessity to have a major shift in the political culture of Ottawa towards indigenous peoples and their fundamental rights. Joe referred to a “transformative shift”, and I agree with those terms.

Bill C-262 refers to making sure the laws of Canada are consistent with the UN Declaration on the Rights of Indigenous Peoples. The Prime Minister referred to laws, policies, and operational practices. Article 4 of my bill refers only to laws. Would you suggest we now add or amend that article to include policies and operational practices?

[The Clerk]

I think that's an open question, obviously, for members of Parliament to determine. Clearly, our focus is that we are continuing to examine not just laws, but also policies and practices to ensure alignment with recognition and implementation of an indigenous-rights approach, and that we are doing so in a way that implements the UN declaration.

[Ana Stuhec]

I would agree. Full implementation of the UN declaration is going to require a multi-faceted approach in legislation, policy and programs, and the way we operate. It will require a change and shift in all of those directions for us to make meaningful implementation.

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

Would that improve or strengthen Bill C-262 if we decide at this committee to make that amendment to include policies and operational practices?

[The Clerk]

I think that's ultimately something that committee members will have to determine in terms of their perspective on strengthening or improving. It's very difficult I think for public servants to weigh in to make a value judgment on that. Our job, of course, is to loyally implement the laws of the country. Again, it's clear that our focus we know is multi-faceted and it needs to be in order to get where we think we need to get to in terms of the relationship that the government is seeking.

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

Given the new direction that this present government wants to give to relations with indigenous peoples, isn't that what you're doing already?

[The Clerk]

I would certainly agree, that is the work that we have underway. Lots still to do. I don't want to give the suggestion that we're near the finish line, but, absolutely that is our focus, looking at what laws, policies and practices need to be transformed in order to reflect a recognition-based approach, and to implement the UN declaration. I think there's been some evidence of that over the last few weeks, including even the environmental assessment review proposals that were tabled by the government that show the multi-faceted nature of this work.

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

The other question I have is for Ana or Stefan. Under article 4.1 of the Department of Justice Act, the minister needs to make sure that any legislation to be introduced in the House of Commons is consistent with the Canadian Charter of Rights and Freedoms. Presently, we don't have the equivalent for aboriginal treaty rights or indigenous human rights in this country. This bill will achieve that, to make sure that any future legislation is consistent with the UN Declaration on the Rights of Indigenous Peoples. Do you agree with that interpretation?

[Stefan Matiation]

I guess what I would say is that the bill establishes some accountability mechanisms in the form of the requirement of an action plan and report. I would just say that's the facts of the bill, and I would leave it at that. It does establish an accountability framework for the achievement of that objective of consistency between laws and the UN declaration.

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

Mr. Lussier, you talked about various articles of the United Nations Declaration on the Rights of Indigenous Peoples. However, I could not help but notice that you did not cite article 31 of the Declaration. Is there a reason for that?

[Hubert Lussier]

Could you refresh my memory and remind me what article 31 contains?