Indigenous and Northern Affairs Committee on March 22nd, 2018

[Celeste McKay]

Right. There was no recognition. Basically indigenous peoples were more or less invisible, and what did their rights mean? If you look at article 31, the right to health, it doesn't just talk about medical supplies. It talks about traditional sports and games. It talks about connection to traditional knowledge around medicines. It's also a reflection of the history of colonization and discrimination, and getting at that. This instrument gets at that.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Thank you, and here's my second question. I want to offer you both a chance to respond.

I'm reading a paper that was sent to me from another MP by Thomas Isaac, who did some work for the Métis Nation of Manitoba. He says:

UNDRIP is a blunt instrument, developed in an international setting, that is not reflective of Canada’s world-leading legal protections for Indigenous rights; Canada is the only nation with an established system for limiting unilateral state action against Indigenous peoples. By simply adopting UNDRIP in its entirety into the Canadian context, Bill C-262 misconstrues Canada’s existing and sophisticated Indigenous rights regime and, by adding new uncertainties, risks hindering the pursuit of reconciliation.

This is Thomas Isaac, somebody I'm sure we all respect. Could you comment on this perspective?

[Prof. Brenda Gunn]

Sure, and I'll try to do so in a minute and a half. How's that?

It's an interesting position because Canada was there. Let's not forget the people who were there from the beginning. I was only there in the last couple of meetings, but Canada was there, and one of the years I was there Canada was leading the small working group on self-determination. So this idea that somehow this international instrument is completely separated from Canadian law is a weird way to think about it. No international law specifically reflects the precise situation in Canada. That's why you have the general framework of rights that then gets implemented in a context-specific way in a state. That's what we do with all international human rights.

The Canadian state was there participating and influenced the text. Indigenous peoples from across Canada were there from the beginning, influencing, including member Saganash, so we had an opportunity to influence the text and I think successfully did so. The job now is to think about how that framework can work specifically in Canada.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Obviously you don't share this perspective.

[Prof. Brenda Gunn]

Correct, in case that wasn't clear.

[Celeste McKay]

I don't share it either. I don't think it is a blunt instrument. I think it's a very specific instrument. Yes, Canada has protections, but has Canada—because it has section 15 and section 35—achieved equality? No, it hasn't. That was actually one of the main points I was trying to make. We can benefit, in terms of our defending human rights, by having this UN declaration guide our work. I don't know if that gets at what you're saying.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Those are excellent answers.

I'm intrigued by your handbook on UNDRIP. What was your thought behind that? We have about 50 seconds left, just to break it down.

[Prof. Brenda Gunn]

When I started that project years ago, it was about the recognition that there was a really important instrument that not a lot of people knew about. I tried to develop it in such a way that my dad—with his...we'll say grade 6 education—could get some understanding, while also having enough meat and references in there for legal professionals and judges, for example, to understand the context.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Would you be able to submit it to the clerk, so that it can be distributed to everybody?

[Prof. Brenda Gunn]

Yes, I am happy to do that.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Celeste, what was your father's name?

[Celeste McKay]

Raoul McKay.

[Dan Vandal, Liberal, Saint Boniface—Saint Vital, MB]

Of course. I worked with him at Ma Mawi.

[Celeste McKay]

Did you? Wow. Yes, he was on the board there.

There is also a parliamentary handbook on the UN declaration. I don't know if you have that.

[The Chair, Liberal, MaryAnn Mihychuk]

We do.

[Celeste McKay]

Awesome. Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

That's enough of Manitoba. We're moving to another prairie person. Well, he's in transition, but he's definitely a prairie person.

Go ahead, MP Viersen.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

I have High Prairie right in my riding.

Welcome to the committee and thank you for being here.

Brenda, you talk about Canada lagging behind. You said we're falling behind on the international stage. What country should we look to as an example of how indigenous rights are played out? What kinds of similarities does that country share with Canada? Each country has its own history. It would be awesome to flip a switch and be where we want to be, but that isn't how the world works.

[Prof. Brenda Gunn]

A really recent example would be New Zealand and the way in which their recent trade agreements respect Maori rights and are in line with the UN declaration. Canada is coming up there, but New Zealand has actually led the way on that one.

Bolivia also has recognition of the UN declaration in its constitution, and has recognized “mother earth” rights. Sorry, that was a bad translation from the Spanish.

There's also a fair number of Nordic countries that have taken significant steps in working with.... There's the Act on Greenland Self-Government, which I think would be quite relevant as a potential model—at least for northern Canada—but I leave it to my Inuit colleagues to speak to that, if they're so inclined.

My point was also that we were a first mover and then we didn't do much, and the rest of the world kept moving. Maybe we're in the middle of the pack, but I get the sense that we're lagging behind. There are a lot of examples, but those are the few that come to the top of my mind.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

To both of you, we're discussing a specific act. We're talking about the implementation of the UNDRIP, but we're discussing the particular act. Let's say this act makes it through the House of Commons and the Senate, and becomes law. On the day this act becomes law, what changes in Canadian society? What switch gets flipped?

[Celeste McKay]

I would hope that whatever your work is, it's influenced by the UN declaration. If you're doing a policy review of child welfare, you would look at what the relevant provisions are in the UN declaration dealing with child welfare. Have you turned your mind to it? I imagine that this would be done in a more principled way as well; that you'd do a policy and legislative review. At the Assembly of First Nations' general assemblies, whatever motion they pass, they have the relevant articles of the UN declaration because they've purposely developed that practice.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

It would be a reference.

[Celeste McKay]

Yes, a check-in piece to see if you've considered these issues, these rights.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Brenda, do you have anything?

[Prof. Brenda Gunn]

I have a couple of hopes for what might change. If we're still required to use the courts to assert our rights and gain that recognition, the UN declaration can assist in articulating and understanding the scope of protected rights without a judge. For example, an Ontario Court of Appeal judge found early on that it had no relevance. The judge, unfortunately, made three errors of international law in an Ontario Court of Appeal decision.

To me it feels like we would start a little further ahead. I feel like sometimes we always have to start at the basics, and this could help us move ahead.

I also hope that Canada would pass this and then the next day start working on a national action plan, something that has been called for from at least the World Conference on Indigenous Peoples, the UN committee on the elimination of all forms of racial discrimination. Canada needs to develop a plan, so this would be part of that impetus to take those steps. It also puts the words into action and shows the real commitment of this government.