Indigenous and Northern Affairs Committee on March 22nd, 2018

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

One of the things that we're trying to tease out as to the whole point of free, prior, and informed consent—and I'm going to be running out of time soon, but I'm sure my colleague will take it up, as well—is this: who consents, and does no mean no in this case as well?

I'll let Brenda start on that, and I'm sure Celeste will get some more time on that with my colleague.

[Prof. Brenda Gunn]

In that answer, I think it's important to go back to what I said at the beginning, that implementing the UN declaration is about resetting the relationship and shifting from a colonial one where Canada is making all decisions for indigenous peoples to where indigenous peoples are actively engaged in the process. It's really unfortunate to me that we emphasize and get stuck on consent and this yes and no, because it sounds like the government is still envisioning doing all of the work, running it by indigenous peoples, and only giving them the opportunity to say yes.

What I hope would come forward from an approach of implementing the UN declaration is having a more robust engagement with indigenous peoples. We talk about consultation, but I hope it could also involve collaboration, joint decision-making, and the idea of consent being that indigenous peoples have had their voices heard and concerns addressed. In my head, it's more of a consensus-building process where you work towards the yes. I don't think anyone should just be given an opportunity to say yes or no. I think they should be at the table and engaged in a far more robust fashion.

[The Chair, Liberal, MaryAnn Mihychuk]

You've run out of time.

We're going to move on to MP Romeo Saganash.

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

Thank you, Madam Chair.

Thank you to both of you for your presence today. It's very well appreciated. Your comments are extremely important for our work on this proposed legislation. I wholeheartedly agree that this Bill C-262 is important for reconciliation, as you said, Brenda, and critical as well.

I believe that, because there is no precedent around the world for this kind of legislation, it is a framework legislation. There is no precedent. In that sense, it will allow Canada to, as you said, come back to the forefront in the protection of and respect for indigenous peoples' fundamental rights. Thank you to both of you for your comments.

I want to start with you, Brenda. You spoke about this bill and its provision on periodic reporting. That provision comes from previous federal legislation that was adopted back in 1976, I believe. For the implementation act of the James Bay and Northern Quebec Agreement, we had a similar provision. For the next 25 years, the minister had to report to Parliament.

Do you see a difference between this periodic reporting that's provided for in Bill C-262 and the kind of periodic reporting that Canada has to do with respect to its international obligations?

[Prof. Brenda Gunn]

Wow. Thank you for that question. Although I haven't fully turned my mind to that, I can say, as someone who has participated through the NGO process at Canada's review before several international bodies, that it has been frustrating. It seems that Canada lacks the mechanism to take the information from that review and implement it in Canada. It seems to sit with Canadian Heritage, who then can't implement it.

I think it would be different, but I hope it would be complementary. It could also perhaps be one of the mechanisms Canada uses to address the recommendations coming from those international bodies. I see that work as being sort of complementary.

But this would also be specific, right? Looking at the UN declaration and Canada taking the actions, I also think that Canada reporting internationally doesn't always get a lot of attention. Bringing it home, having that periodic review happen here, at home, brings greater attention to the issues. I think that is really critical, so that people are turning their minds to it regularly and our parliamentarians are thinking about these issues.

I do see them as being somewhat different but complementary.

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

Different in what way?

[Prof. Brenda Gunn]

The instruments are different, for example. When Canada is up for review before CERD, they're looking at all of their protections on the elimination of racial discrimination. At those reviews, Canada sends the Department of Canadian Heritage, which leads the reviews with support. Sometimes the Department of Justice is there, and sometimes provincial bodies. Those reviews include so many issues. Racial discrimination, for example, includes a lot of issues—migrant workers, immigration detention, the policing of African Canadians—so as indigenous peoples, we're fighting for our time. The committee does often respond, but we're fighting for space when we're looking at very broad issues.

This periodic review would be specific on indigenous peoples. It would be looking at the UN declaration. It wouldn't be international people who sometimes are viewed as separate from Canada, but it would be our members of Parliament, who are elected to represent Canada's interests. It would have that greater Canadian context and focus.

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

Thank you.

Celeste, it's good to see you again. We saw each other a lot at the UN. I'm glad to see you here, I as a member of Parliament and you in front of me.

[Celeste McKay]

Thank you.

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

I'm glad you raised the issues that we debated a lot at the UN with respect to individual rights and collective rights. Not many members, in fact none at the beginning, recognized that collective rights existed under international law, in spite of the fact that the right to self-determination has been in international law for a long time. That seems to be pretty collective as a right.

[Celeste McKay]

As collective as they come, right?

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

I want you to comment on something. I think you clearly understand the purpose of Bill C-262 as a vehicle or as a framework for the future development of policies and legislation. I'm glad you raised that. Can you imagine or give us an example of how it would work, once this bill is in place, with regard to the future development of any legislation or any policy that you have in mind?

[The Chair, Liberal, MaryAnn Mihychuk]

You have less than a minute.

[Celeste McKay]

Sure.

Let's look at environmental assessment, which kind of relates to “does no mean no”. If you were developing environmental assessment acts, as you are right now, what would that mean in terms of indigenous peoples' rights? If it means seeking consent instead of consultation through section 35, does it make that much of a difference? Not really, in the sense that hopefully the right to consultation is aimed at getting agreement in negotiating, although, at the end of the day, if a right holder has a right under section 35, they have a right. It's just like free, prior, and informed consent. If you have a right to give the consent, it has to mean something.

I think it would be easy to do an annual review over time. I think once people within the bureaucracy have gone through the exercise of looking at their respective mandates and at how they address the rights of indigenous peoples within those mandates, every year it would just be a matter of looking at what was new and how that related to, let's say, the right to live free from violence and discrimination.

[The Chair, Liberal, MaryAnn Mihychuk]

Thank you.

I don't see our next panel here, so why don't we continue with our next questioner in our lineup, MP Mike Bossio.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

That's good news, because I didn't think I was going to have an opportunity to ask any questions, and I was hoping I would.

Thank you both for being here. It was very informative. You both have tremendous backgrounds that are beneficial to the work we're trying to accomplish here today. I'm trying to better understand UNDRIP, and the perceived and non-perceived impact it will have on Canadian law, policy, or program implementation.

This area has been communicated by a number of individuals, that FPIC is a yes or no proposition and that's it. It's black and white. To me, that's a very simplistic expression of what FPIC means. As my honourable colleague Romeo has said on numerous occasions, one set of rights does not abrogate another set of rights.

Maybe you could give us your view on what that means and any examples you can think of in negotiations where it is viewed in a much more complex manner.

[Celeste McKay]

Let's say you're setting up a mine in Nunavut, and the mining company is from outside and wants to come in. You're the regulator, as the Government of Canada. Do you just go ahead with it or do you consult with the people in Nunavut, form an agreement, build partnerships, and develop ways to ensure that a certain percentage of the workers for the mine are indigenous and from that territory?

I think that in the negotiation process leading into development or whatever area you're looking at, partnerships, relationships, are formed, and if there's goodwill and a sense that these rights have meaning—

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

In that negotiation or that partnership, do you find you have to agree on absolutely everything or the deal is off?

You're always going to have differences of opinion on certain issues. That doesn't mean that the whole deal blows up. In any negotiation, you try to get to a place where you can agree on most things and reach that consensus, but you know going in that you're not going to get everything in a negotiation.

[Celeste McKay]

Right, and so maybe it ends up that only 75% of workers are from that area instead of 90%, or whatever. Naturally, when you have developed a relationship and a partnership and approach it that way, you can overcome the hard issues and make progress in the negotiations.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Ms. Gunn, could you give us your thoughts from a constitutional or law policy standpoint? I know that is your background.

[Prof. Brenda Gunn]

I agree with what Celeste was saying, and I'll try to add one or two points quickly.

One is that consent really is the foundation of the Canadian Constitution. It's part of our democracy. Democracy is about the will of the people being expressed. I'm hoping everyone in this room is representing their constituents through this engagement in the process.

It's also for me not such a foreign or large leap to think about how, when the Canadian state is working at developing our relationships with indigenous peoples, we take time to ensure that the appropriate mechanisms exist for indigenous peoples to consent to any activity that's going to particularly impact their rights and interests.

I think that part of what the UN declaration is getting at, and these other international human rights instruments that recognize this right to participate in decision-making on the basis of free, prior, and informed consent, is that it's about ensuring that indigenous peoples are involved early on in the process. Sometimes I think the challenge is that the plan has evolved too far, and then the company says it's fully baked. Getting involved at an earlier point makes sure the processes that are set up allow the parties to hear one another.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

Do you not find that in the process you actually establish far greater clarity and certainty, and reduce the time required to achieve that successful negotiation?

[Prof. Brenda Gunn]

I actually think that implementing the UN declaration and the standards will lead to greater certainty in Canadian law than what we have now. I think we will make better decisions, faster, and subject to less review than the current state of affairs, because parties are not feeling that they are being heard, or they may not fully understand the decision because their contact point has been limited, and so they are using the judicial system.

My final point is just to say that the right of indigenous peoples to participate in decision-making on free, prior, and informed consent doesn't exist in isolation. We have administrative law principles that also will play into how government makes appropriate decisions. We know it is a reasonableness standard. We have all of these principles, so this one aspect that needs to be further developed—indigenous peoples participation—isn't going to, I don't think, throw everything off kilter. It's just going to build on what we have.

[Mike Bossio, Liberal, Hastings—Lennox and Addington, ON]

That's a great answer. Thank you.

[The Chair, Liberal, MaryAnn Mihychuk]

That's just about your time.