Indigenous and Northern Affairs Committee on March 20th, 2018

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

Minister, in those bills that were put forward in Parliament, Bill C-68 and Bill C-69, the language around free, prior, and informed consent was specifically not in there. This is language you're committing to that will be committed to in law. That would actually change even the work that's been done in Bill C-68 and Bill C-69. If you're committed to the implementation and putting that language in, why is that language of free, prior, and informed consent not in Bill C-68 and not in Bill C-69?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

I think we have said all along that we accept the UN Declaration on the Rights of Indigenous Peoples. That was in our platform. It's exactly what we're doing, going forward, on the recognition and implementation of indigenous rights. That is where we're going.

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

Clearly, when the justice officials were here, I believe that by supporting this particular piece of legislation without having total clarity around what free, prior, and informed consent was.... Certainly, from what I understood when the justice officials were here, it was very puzzling and confusing. They couldn't say who we get consent from. I asked them, if it's something like the marijuana legislation, who do you get consent from? In article 19 with this UN declaration, you are committing to laws of general application and free, prior, and informed consent around laws of general application.

How are you going to get consent? Who are you going to speak to?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

I think that is the issue and the reason it's so important to rebuild nations, and that's what we're doing. If a nation takes a decision, it's different from individual Indian Act bands. We are also working within a parameter of a new law. How do individual communities apply the law in their own communities? That is very much part of self-determination.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

The questioning moves to MP Charlie Angus.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Thank you, Madam Chair. It's a real pleasure to be back at your committee.

Madam Bennett, it's always a pleasure to discuss things. Even though we sit across from each other, we don't get to talk—except maybe when we're shouting at each other, off record.

Last week I was at Ontario Superior Court with former Chief Edmund Metatawabin and the survivors of St. Anne's residential school. They brought forward an appeal on non-disclosure of sworn evidence that's in the hands of the Government of Canada. That evidence comprises the sworn testimonies from the survivors of Indian residential schools—relating to child abuse, sexual assault, and other crimes—obtained by Canada prior to the settlement agreement of 2006. The surprising thing that's come out of the St. Anne's hearings is that the government is in possession of documents relating to 14,000 civil actions that were brought by survivors, some of them from St. Anne's but also from across Canada.

Can the minister tell us if those transcripts of examinations for discovery from plaintiffs suing for institutional child abuse prior to 2006 were disclosed to the Truth and Reconciliation Commission before it was extinguished?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

As you know, there were concerns about documents that hadn't been disclosed. Our government has disclosed and Justice Perell has said that everything has been disclosed now, and he has said that Canada is holding up its side of the bargain now, and so it—

[Charlie Angus, NDP, Timmins—James Bay, ON]

We're talking about different documents. We're not talking about, sorry—

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

Yes.

[Charlie Angus, NDP, Timmins—James Bay, ON]

—just so we don't go down the rabbit hole, St. Anne's had to go to court because the government suppressed the 12,000 pages of documents of crimes—

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

—the previous government—

[Charlie Angus, NDP, Timmins—James Bay, ON]

—at St. Anne's residential school.

Your government went the whole distance and they still.... I'm talking about the documents relating to the 14,000 cases that were brought for civil action prior to 2006. It became apparent during the St. Anne's hearings that the government has those documents, but apparently, it has not turned them over the Truth and Reconciliation Commission. That's a separate set of documents, with 14,000 cases of civil action. Were they turned over to the Truth and Reconciliation Commission? Is the government sitting on them? Why?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

My understanding is that the Government of Canada has turned over any documents that the court has asked for and we have now, as Justice Perell said, held up our... “Evidence shows Canada has kept its promise and continues to keep its promise.”

That's the problem, but Charlie, I think that the issue—

[Charlie Angus, NDP, Timmins—James Bay, ON]

I'm talking about different documents. I'm not talking about the suppression of the evidence of the crimes committed to the children of St. Anne's. I'm talking about all the cases that were brought forward for civil action that the AFN then signed on, thinking that all these prior cases.... What happened to them?

Before Justice Perell, your lawyers argued that none of these 14,000 cases could be brought to the IAP and he agreed. The government declared settlement privilege and said that those were separate documents and Justice Perell certainly agreed with you. However, when I was at the court of appeal, the judges asked your lawyers whether they had any proof that there was settlement privilege posted on these 14,000 documents and they said no.

Therefore, Justice Perell was told a falsehood about settlement privilege. Why would you claim settlement privilege on these 14,000 cases that are evidence, that are proof, and that, in the case of Angela Shisheesh, could help other cases? Why would the government claim settlement privilege?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

In these individual cases, you obviously are there...and I believe Ms. Shisheesh has received a settlement. I think the issue is that there is an integrity to the IRSSA process that needs to be maintained. Otherwise, it will all go tumbling down.

[Charlie Angus, NDP, Timmins—James Bay, ON]

I think that's the concern.

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

What we are trying to do is that, for anybody who has not been properly served by that, we're trying to get them whatever they need to be properly compensated and then—

[Charlie Angus, NDP, Timmins—James Bay, ON]

Yes, but Madame Bennett, that's not true. You went to B.C. Superior Court with your factums that are still under secrecy, which stated that the right of procedural fairness did not apply. You're not saying whether someone was denied rights. You're saying they don't have the right to come back because the government suppressed evidence. That's not a process of integrity. That is a fundamental undermining and that's why St. Anne's won't go away.

However, I am talking about the documents and all the evidence that your government claimed recently to Justice Perell. He accepted your argument about settlement privilege, when settlement privilege is not applicable because you don't have settlement privilege.

Why would you say that?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

I think that we have said that if Ms. Shisheesh or anybody wants their documents with the TRC, that is absolutely their right to table them with the TRC.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Then it's individual choice.

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

As you know, our concern is that certain...the Supreme Court has now decided that some of those, or they will all be destroyed, if people don't give individual permission—

[Charlie Angus, NDP, Timmins—James Bay, ON]

But the Supreme Court wasn't informed about these 14,000 cases that were settled prior to 2006, were they?

[Diane Lafleur, Associate Deputy Minister, Department of Indian Affairs and Northern Development]

I just wanted to add one clarification. The pre-IRSSA documents are covered by settlement privilege, but if the claimants want us to waive that privilege, we will waive that privilege.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Okay. That's interesting because I was pretty sure what I heard in the court of appeal was that they asked your lawyers, “Do you have any proof that any of these are under settlement privilege?” They said, “No.”

You claim settlement privilege to deny access to St. Anne survivors, so if you say you've got settlement privilege, you have settlement privilege. If you don't, you're undermining the process.

[Diane Lafleur]

If the claimants want us to waive it, we will.