Indigenous and Northern Affairs Committee on March 1st, 2018

[The Chair, Liberal, MaryAnn Mihychuk]

Welcome everyone. We have a very large crowd. I'm glad everyone's here. We are starting a new study, but before we get into the hearing itself, we have a bit of committee business to take care of.

Prior to that, I want to recognize that we are on the unceded territory of the Algonquin people. Part of a process that more and more Canadians are taking part in is recognizing the lands of our original peoples, where we hold public hearings or ceremonies, which is an important part of the process of truth and reconciliation.

Pursuant to order of reference on Wednesday, February 7, 2018, 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, is the topic we are going to be discussing.

Before we get into presentations, I would ask the committee to have a look at the budget. We need to approve $1,700 to complete our lands study. It is moved by Mike and seconded by Gary that we approve it.

(Motion agreed to)

Thank you.

We have a full agenda, and we have many experts in the room. We want to hear from you. Many Canadians are interested in the topic, especially one of our members, Romeo Saganash, who is the presenter of the bill and is bringing it forward for Canada.

We are going to start with the Department of Justice. We have two representatives. The way it works is that you'll present for 10 minutes, then we will move to the Department of Indian Affairs and Northern Development, then to Canadian Heritage. Each group will have 10 minutes, after which we will go into rounds of questioning. I will give you signals for three minutes, then two minutes, if you need it for a heads-up for when to wrap up. If I go like this, it means you're time's run out, and you should please wrap up your presentation.

Thank you very much for your attention. We're going to start with the Department of Justice. We have Ana Stuhec and Stefan Matiation. I leave it up to you how you want to work the presentation.

[Ana Stuhec, Acting Assistant Deputy Minister, Aboriginal Affairs Portfolio, Department of Justice]

Before I begin, I would like to recognize the Algonquin Nation on whose traditional territory we are gathering.

We would like to thank the committee for inviting the Department of Justice to appear today with respect to this private member's bill, Bill C-262. As you know, in May 2016, the federal government expressed its unqualified support for the United Nations Declaration on the Rights of Indigenous Peoples and committed to its full implementation, in partnership with indigenous peoples.

Since then, the government has taken many steps toward implementing the UN declaration, which have been highlighted on various occasions by the Minister of Justice as being a necessary component of the transformation that the federal government wishes to undertake in renewing its relationship with indigenous peoples.

Establishing the Working Group of Ministers on the Review of Laws, Policies and Operational Practices Related to Indigenous Peoples was a key step in this process.

In announcing the creation of the working group in February 2017, the Prime Minister indicated that its objective is to seek to ensure that the crown is meeting its constitutional obligations with respect to aboriginal and treaty rights, adhering to international human rights standards, including the United Nations Declaration, and supporting the implementation of the Truth and Reconciliation Commission's calls to action.

Further, in July 2017 the Government of Canada adopted and publicly released “Principles Respecting the Government of Canada's Relationship With Indigenous Peoples”. The principles are rooted in section 35 of the Constitution Act, 1982, and the UN declaration, and are informed by the report of the Royal Commission on Aboriginal Peoples and the Truth and Reconciliation Commission's calls to action. The principles, as well as the UN declaration, guide the review of the laws, policies, and operational practices and form a foundation for transforming how the federal government supports indigenous peoples and governments.

In carrying out its mandate, the working group has also heard from many indigenous leaders and organizations about their vision for how Canada should adopt and implement the UN declaration in full partnership with indigenous peoples. As explained by the Minister of Justice when she announced the government's support for Bill C-262 in November 2017, this bill broadly aligns with the government's commitment to implement the UN declaration and its commitment to transform the crown-indigenous relationship. It represents one critical aspect of the shift that must be made to transform indigenous-crown relations based on the recognition and implementation of indigenous rights.

Bill C-262 calls for the alignment of federal laws with the UN declaration. The bill's proposed approach, similar to the approach taken to date by the federal government, reflects an acknowledgement of the need to implement the UN declaration in co-operation and collaboration with indigenous peoples through a range of diverse measures, including legislative policy and administrative measures. The nature, scope, and type of approach taken in specific areas will necessarily vary.

The bill also reflects article 38 of the United Nations Declaration, which states the following:

States, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.

For this reason, and as many have observed, the bill alone will not accomplish the full implementation of the United Nations Declaration. A comprehensive approach including additional efforts and measures to implement the United Nations Declaration is needed.

On February 14, 2018, the federal government took additional steps to advance this implementation. The Prime Minister delivered a statement on the recognition and implementation of indigenous rights in the House of Commons that confirmed the shift to a recognition of a rights-based approach to relations with indigenous peoples and committed to the development of new legislation and policy through a new recognition and implementation of rights framework.

The measures proposed in Bill C-262, as well as the important discussion the bill will generate before this committee and across the country, are part of accelerating the shift to recognition of rights-based relationships.

Madam Chair, we look forward to answering questions from members of the committee on this private member's bill, Bill C-262. Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

We'll move to Indian Affairs and Northern Development.

Welcome.

[The Clerk]

Thank you, Madam Chair.

Good afternoon, everyone.

I would like to start by acknowledging that we are meeting here on the unceded territory of the Algonquin people.

Thank you very much for the invitation to speak today on Bill C-262. I will be focusing my comments on giving an update on the Government of Canada's efforts to ensure we're not hindering the implementation of indigenous rights, which include work to implement the United Nations Declaration on the Rights of Indigenous Peoples. At its core, the declaration affirms that indigenous peoples have the right to live, develop, and thrive according to their unique circumstances and priorities, that is, to determine their futures for themselves.

We've long worked to advance self-determination and improve indigenous well-being. For over 30 years now, there have been efforts driven by and grounded in section 35 of the Constitution Act, 1982, which section recognizes and affirms indigenous rights.

For example, the ongoing negotiation of modern treaties and self-government agreements advances the implementation of articles 3, 4 and 5 of the United Nations Declaration, which affirm the rights of indigenous peoples to self-determination and self-government.

Since 2015 we have also been engaged in recognition of indigenous rights and self-determination discussions. Through these discussions we have sat down with indigenous groups based on how they want to organize themselves and start from a place of recognizing their rights. We have ongoing rights recognition discussions with communities, travel councils, historic treaty groups, and Métis organizations, as well as other community-based organizations that are coming together to rebuild their nations on their terms.

Through these discussions we are exploring shared priorities that our indigenous partners raise. We come to the table without predetermined mandates and we work together to chart a path forward to achieving the outcomes that matter to indigenous communities. We are striving to build flexible arrangements, support indigenous communities in achieving self-determination on their terms that can evolve along with our relationships. Through this innovative process we are living out our commitment to co-development, which is reflected in article 18's declaration that indigenous peoples have the right to participate in decision-making about matters affecting their rights through their own representatives.

Working with self-determined groups to advance shared priorities, including nation building and governance, also responds to articles 3 and 9, which assert the rights of indigenous peoples to determine and belong to their own communities, nations, and political entities.

The declaration also makes repeated calls to respect the principle of free, prior and informed consent when making decisions that affect indigenous peoples.

Consistent with these calls, both section 35 and the duty to consult serve to protect indigenous rights from crown action, and reconcile the rights of indigenous peoples with those of wider society.

We still have work to do to implement the full scope of free, prior, and informed consent. Canada has established a whole-of-government approach to these obligations in response to court decisions and best practices established by federal departments and agencies to meet their specific needs.

These are just a few examples of the many ways that our work has been advancing and continues to advance the implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

More recently the Government of Canada has taken bold new steps to lead collaborative efforts that support indigenous peoples' treaty rights and their inherent rights as recognized in section 35, while also meeting the objectives outlined in the UN declaration.

On February 14, the Prime Minister announced that the Government of Canada will develop a recognition and implementation of indigenous rights framework in full partnership with first nations, Inuit and Métis peoples.

To truly renew the relationship between Canada and indigenous people, the Government of Canada will make the recognition and implementation of rights the basis for all relations between indigenous peoples and the federal government.

This is at the heart of what the UN declaration aims to achieve, and the declaration is a foundational piece upon which we build the framework. While our work to date has gone considerable distances toward implementing elements of the declaration, we know that more work is required. The framework for the recognition and implementation of indigenous rights will provide the mechanisms necessary for all federal departments to fulfill the commitment to recognizing and implementing rights, facilitating a whole-of-government approach grounded in law and policy.

To determine the contents of the framework, Minister Bennett is leading a national engagement with first nations, Inuit, and Métis partners with a particular focus on women, youth, and elders. The engagement will also include industry, the general public, and our provincial and territorial partners to support a pan-Canadian commitment to the recognition and implementation of indigenous rights.

Make no mistake though, our partners in this process are the rights holders, not the stakeholders.

We will work in partnership with indigenous peoples to determine the shape of a renewed crown-indigenous relationship.

Through this process we are putting into practice Bill C-262's call to work in consultation and co-operation with indigenous peoples to implement their rights in Canadian law. What we are learning through engagement also builds on existing sources of knowledge such as the Report of the Royal Commission on the Rights of Indigenous Peoples, the Penner report, and the tireless work of many indigenous advocates.

To use the language of Bill C-262, this is our “national action plan” for advancing indigenous rights and achieving the objectives of the declaration. Based on early feedback, the recognition and implementation of an indigenous rights framework may include a number of elements such as: legislation to formalize the standard of recognition of indigenous rights as the basis for all government relations with indigenous people; a new policy that reflects the unique needs of first nations, Inuit, and Métis peoples to replace the current comprehensive land claims policy and the inherent right policy; reforming government policies and practices to support the implementation of treaties and self-government agreements; mechanisms to support the rebuilding of indigenous nations and governments and advance indigenous self-determination and the inherent right of self-government; creating new dispute resolution approaches to address rights-related issues, including overlapping territories, treaty implementation, and historic grievances, that move us from conflict to collaboration; tools to strengthen a culture of federal government accountability and to build greater trust between indigenous peoples and the federal government; and legislation to replace Indigenous and Northern Affairs Canada with two new departments that will better serve the distinct needs of first nations, Inuit, and Métis peoples.

These likely components represent preliminary thinking on what shape the framework will take but respond directly to key elements of the declaration. The goal is to chart a new way forward for the Government of Canada to work with first nations, Inuit, and Métis peoples and to end decades of mistrust, broken promises, poverty, and injustice.

Working together with first nations, Inuit, and Métis partners to define how we recognize and implement indigenous rights in federal law and policy is vital to overcoming the legacy of colonialism and re-building indigenous nations and governments. This transformative shift in our relationship will not happen overnight. We are working towards a longer term vision for a better Canada in which healthy, prosperous, self-determining, and self-governing indigenous nations are key partners.

This goal is echoed in Bill C-262, which will support us on the road to making the vision of the UN declaration a reality and fulfilling the promise of section 35.

We are committed to delivering real results that improve indigenous well-being and bring Canadians together in a more just society, so that we can continue on in our journey towards reconciliation.

Thank you.

I look forward to answering any questions you may have.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

Our final presenter in this panel is Canadian Heritage.

Welcome.

[Hubert Lussier, Assistant Deputy Minister, Citizenship, Heritage and Regions, Department of Canadian Heritage]

Thank you, Madam Chair.

I also wish to begin by acknowledging that we're on the ancestral lands of the Algonquin Anishinaabeg. We thank the committee for the invitation to Canadian Heritage to provide information on Bill C-262.

My brief remarks will describe how currently Canadian Heritage addresses initiatives that align with the UN Declaration on the Rights of Indigenous Peoples. I will address indigenous languages which is raised in article 13 of the declaration, then cultural heritage issues as it relates in particular to articles 11 and 12.

In December 2016, before the Assembly of First Nations Annual General Assembly, the Prime Minister committed the government to enacting legislation to preserve, promote and revitalize indigenous languages. The Prime Minister also stated that the legislation would be developed jointly with indigenous peoples.

In June 2017, Canadian Heritage Minister Mélanie Joly joined National Chief Bellegarde from the Assembly of First Nations, President Obed from the Inuit Tapiriit Kanatami and President Chartier from the Métis National Council in announcing the launch of a process to co-develop this legislation.

Since that time, the four parties have been working diligently and collaboratively on the co-development of the legislation. I would like to add that those groups are not the only ones that will be consulted, of course. All rights holders will be included in the consultations.

By helping preserve and restore indigenous languages, Canadian Heritage is following through on the government's commitment to implement the Truth and Reconciliation Commission's calls to action in the spirit of reconciliation.

On the financial programming side of things, Canadian Heritage delivers the aboriginal language initiative. That component supports community-based, indigenous-led projects that focus on the revitalization, preservation and promotion of indigenous languages. The component's resources were increased from $5 million to $19 million in Budget 2017. Canadian Heritage also delivers a program component called northern aboriginal broadcasting, the purpose of which echoes article 16 of the United Nations Declaration on the Rights of Indigenous Peoples.

Articles 11 and 12 of the declaration include issues of access, preservation, and repatriation of cultural property and human remains, particularly those that are in the possession of the state. Currently, Canadian Heritage provides financial support to indigenous communities and eligible Canadian museums to assist communities to access, preserve, and transmit their heritage to future generations.

A modest amount of funding is also available to support such repatriation activities. The department is working on revising details of its funding programs in order to better address the needs related to repatriation to indigenous communities, for example, by expanding the kinds of institutions that are eligible under our program and by including different kinds of eligible expenses. Repatriation from public collections such as the national museums is undertaken directly by those institutions that operate at arm's length from the government.

In response to the Truth and Reconciliation Commission call to action 67, also in relation to this issue, the Department of Heritage is providing funding to the Canadian Museums Association to undertake, in collaboration with aboriginal peoples, a national review of museum policies and best practices to determine the level of compliance with the United Nations Declaration and to make recommendations.

This concludes my remarks.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

We will begin the rounds of questioning with MP Will Amos.

[William Amos, Liberal, Pontiac, QC]

Thank you, Madam Chair.

Thank you to our witnesses. We appreciate the testimony and the written substance as well.

I'm interested in the intergovernmental dimension of this. Obviously, there are impacts. I have raised the question before. I would direct my questions to Mr. Wild and Ms. Stuhec.

How do you foresee the federal government's ability to implement legislation such as Bill C-262 and to implement it in a manner that recognizes that not all provinces are at the same point as the federal government in relation to this project towards reconciliation, or they are at different stages, or they have different interpretations? I'm particularly thinking about issues relating to land use management. Obviously, I represent Algonquin constituents in the riding of Pontiac, so my focus is in that context. I'm less focused on the north.

Could you comment on how we get to implementing the heart of what is intended in Bill C-262, recognizing that we don't have all of those levers related to land use planning or resource management?

[The Clerk]

I guess I'm going to start, and Ms. Stuhec will jump in if I miss something.

Obviously, any federal piece of legislation only attaches to the areas of federal jurisdiction, but there's nothing unusual in that in terms of implementing any international treaty, agreement, and so on. There's always a question as to what role provinces will take, what approach they will take in looking at whether or not they see themselves in those commitments, and how they see implementing those commitments.

To be specific around the land use management question, at least in my area, which is in terms of the treaty negotiations and the work we do at tables cross the country, most of those are tripartite tables in that the provinces are present in those negotiations. There very much is a dynamic where we work with provinces around what a land and cash package will look like in order to address the interests of the indigenous community we're negotiating with.

There are certainly variances across the country in terms of the approaches by provinces around some of those questions, but certainly it's a norm in our work that they are present at the table with us when we are trying to address how we're going to deal with defining and discerning jurisdiction around land use and management.

[Ana Stuhec]

The interpretation and implementation of the UN declaration in domestic law is subject to Canada's constitutional framework, and so it includes the division of powers. A number of the articles of the UN declaration do have implications for the provinces and territories. They would require an action plan on the part of both parties to make it work, to fully implement the declaration, and so it does require collaboration. But recently at the meeting of the FPT Ministers Responsible for Human Rights, ministers shared approaches on advancing human rights and reconciliation with indigenous peoples, and they agreed on ongoing intergovernmental discussions on the UN declaration, so some of that work is beginning. It's also useful to note that both the Government of Alberta and Government of British Columbia have committed to implementing the UN declaration within their jurisdiction. So we're starting off on that path.

[William Amos, Liberal, Pontiac, QC]

Okay, thank you.

Could you please elaborate a bit more on the status of the discussions with the Government of Quebec around UNDRIP, and what statements they have made and what interactions you have had?

[Stefan Matiation, Acting Director General and Senior General Counsel, Aboriginal Affairs Portfolio, Department of Justice]

The only thing maybe that I could add to that is the FPT meeting that Ana referred to would have included all of the ministers from each of the provinces, including Quebec, so they were part of that discussion.

[William Amos, Liberal, Pontiac, QC]

Okay.

Mr. Wild, you mentioned that in most discussions that are ongoing, whether they're rights recognition tables or comprehensive treaty negotiations, as the case may be, they engage in tripartite discussions. How does the federal government reflect its engagement to accommodate in a context where you have negotiations with lands and funds? Is it characterized as such, and will that change in any respect with the application of a bill such as this if promulgated?

[The Chair, Liberal, MaryAnn Mihychuk]

We have about 30 seconds.

[The Clerk]

First, I'll just quickly clarify that the tripartite conversations are where there are land issues in play. Not all of the tables are not necessarily tripartite. It just depends on the subject matter.

I'm not sure we would frame the discussions we're having in a “duty to accommodate” frame. That's not really the basis on which we're having the dialogue. It's trying to figure out what's the appropriate land base necessary for a viable, self-sustaining indigenous government and community and how you build what's going to be needed for the base of an economy. That's more the outcome that I think we're trying to get to. Again, I wouldn't say that we have that perfect in any way, shape or form, I think we know there are problems there, but that is where we're trying to get to.

[The Chair, Liberal, MaryAnn Mihychuk]

Questioning now moves to MP Cathy McLeod.

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

Thank you to everyone who presented. It's unfortunate that we have so many departments in such a short time, because I think there's something valuable that we need to get from every single department. Certainly had it been my preference, we would have enjoyed you all for an hour each.

Anyway, I'm going to start with Justice, and if I could I'll keep them short, because I have a whole bunch of questions.

Before we had the UN declaration, and it was seen as a road map in terms of how Canada moved forward, with the commitment of the government to implement, and with Mr. Saganash's bill, I would suggest that what we have committed to and what we will be committing to is changing the laws of Canada to be consistent with the UN declaration.

Would you agree with that, yes or no?

[Ana Stuhec]

Yes, I would say that's the goal.

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

Okay, thank you.

Then we head into the FPIC, which I think is absolutely fundamental to this particular piece of legislation, so free, prior and informed consent. I'm going to target the area of consent. I think we hear lots of people saying it means this, it means that, but I thought it was said best by Pam Palmater, and this is a quote:

In what alternate universe does consent not require you to say yes or no? In every other context in society and in law, and in contracts, consent means you get to say ‘yes’ or ‘no.’ Only in the case of Indigenous peoples does it mean something else.

I would ask the justice department, is there a clear definition as it would relate to this in terms of what consent will mean? I certainly know in the Criminal Code there's a clear definition. I've seen lots of lawyers argue all sorts of areas, but I think Pam Palmater perhaps said it best. Could you talk about consent?

[Ana Stuhec]

Consent has specific meanings in both domestic and international law, and it was applied.

I think the important thing would be—

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

You said it has a standard definition. Do you have the definition there that you could give us?

[Ana Stuhec]

I don't have the definition with me, but it's generally—

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

Could you table it?

[Ana Stuhec]

Okay.

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

Maybe you could give us a quick.... What is consent, from a legal perspective?