Indigenous and Northern Affairs Committee on March 10th, 2020

[Theresa Tait Day]

No, I haven't seen the document. I've asked for the document and they say I have to go to a clan meeting. Well, I'm busy. I cannot attend a clan meeting. I said I can read and write, so I can look at the document, and yet I'm not able to get the document.

So I don't know, and for members who have gone to these committee meetings, I've asked about the outcome of that meeting. I don't really understand. It's the hereditary chiefs who are talking and I really don't understand what was decided. So there needs to be a process where people can understand what is being said, and there needs to be an ebb and flow. You cannot just have a meeting where people don't understand what's being said or done. So no, I haven't seen it.

[Bob Zimmer, Conservative, Prince George—Peace River—Northern Rockies, BC]

I saw you ask the minister directly to have a meeting with the entire community. My hope is that she honours your request, being a Wet'suwet'en chief yourself with a long history in the community as a community builder there. My hope is that she will take you up and have that collective meeting with every member of the Wet'suwet'en community, and you'd get the issues resolved. Again, we want what's best for you, Theresa.

[Theresa Tait Day]

I'm hoping that I could have that meeting with the minister to inform her that what has happened is really a division of our nation because the band chiefs have been left out. The rest of the communities have been left out. We cannot be dictated to by a group of five guys. We agree on the title and rights as a principle and as a way forward, but let's put that over here for work to do. We still don't have a mechanism that is involving every member of our nation, and that's what I'm concerned about.

My husband is Tahltan, and they have a mechanism in place whereby everyone has a say about a project. We're looking at an economic project. We need to make decisive decisions, and we need a process to make those decisions.

[The Chair, Liberal, Bob Bratina]

Thank you. We're right at the time.

We'll go to our next questioner, Mr. Jaime Battiste.

[Jaime Battiste, Liberal, Sydney—Victoria, NS]

Hello, Professor Borrows. It's good to see you, even through this angle. I've really appreciated your books and articles over the years, and I've thought they've been very insightful during my legal education.

I'm going to ask you a question that I know you could do an entire course semester on, but I'm going to ask you to do it in five minutes, and then if you would like to add written submissions on top of that for this committee, I'd appreciate that.

The heart of this matter is the Delgamuukw case in 1997, and I'd really like you to give a short description of what it was about, but given that for 23 years our courts and our negotiations have not been able to resolve matters, do you have recommendations on how the government can create a mechanism whereby we ensure inherent and treaty rights implementation moving forward, in a fair and just way?

[John Borrows]

Thanks, Jaime. It's good to see you again as well. That's a great question.

In the Delgamuukw decision, the court decided that there was title that would be recognized in a national group. The content of that title would be fee simple-like. The Tsilhqot'in case showed that there would be beneficial interest in the land that the first nation would exercise. Those activities would not be limited to traditional activities, but would include the surface and the subsurface rights.

The court also made the point that there was an inherent limit on title, that you couldn't destroy it such that future generations could not benefit from it. The Delgamuukw case set the table for the Tsilhqot'in case to recognize this broad interest in a national group, as has been described.

In terms of mechanisms for recognizing that, we don't have to go back just 23 years; we can go back 250 years. The Royal Proclamation of 1763 said that lands would be reserved for Indians until such time as there was an agreement in public to transfer or share those lands with those who would be coming to live amongst them. We have good broad notice 23 years on, 250 years on, that land remains vested with the Indians until such time as there's an agreement that says otherwise. That has not occurred within the territory.

The point, then, is to incentivize the internal dispute resolution mechanisms of the Wet'suwet'en, as Theresa was talking about, to ensure that people within that nation, by their own laws, can make decisions about how those lands can be used and occupied and be responsibly taken care of.

The notion of using indigenous law for these purposes is something that the courts have recognized in a case called Van der Peet. They said “a morally and politically defensible conception of aboriginal rights will incorporate both legal perspectives”, meaning the perspectives of the common law, the Constitution, as well as the perspectives of indigenous peoples.

As you create these intersocietal dispute resolution mechanisms that will incentivize the internal laws of the Wet'suwet'en, you can do that through UNDRIP, which would, through statute, be opportunity to create agreements—as the British Columbia legislation itself recognizes—to facilitate the implementation of those rights.

UNDRIP is an economic development instrument. Sometimes people mistakenly think that it's about blocking development. Rather, it is trying to democratically figure out what free, prior and informed consent means. It's not a veto, but it is the right to say no. If the community says no, then another process has to kick in that ensures that the honour of the Crown is taken care of if free, prior and informed consent is not reached.

The notion of the indigenous peoples' own laws that would inform the intersocietal dispute resolution mechanisms means that indigenous peoples have the right to be free, that is, to be different from other Canadians in their nations in accordance with their laws. They also have the right to be different from one another within their nations, because what law within a nation does is that it allows you to disagree agreeably. What Theresa is asking for is this idea that when people are engaged together, they could disagree agreeably.

I'm going to refer you to the Wiikwemkoong nation constitution in closing here. They have principles of natural justice, which mean, as follows:

that a person has the right to know the allegations being made against them, they have [a right] to defend themselves and that a fair decision will be made taking into account all of the relevant evidence put before the Justice Counsel;

Reasonable Limits not exceeding the limit prescribed by law, not excessive;

Conflict of Interest occurs when an individual organization is involved in multiple interests, one of which could possibly corrupt the motivation for an act in another.

The point I'm making here, by drawing on the seven grandmother and grandfather principles or citing the constitutional provisions around conflict of interest, reasonable limits or principles of natural justice, is that first nations can be incentivized to make decisions that have clarity attached to them.

There will be differences, just as Quebec is different from Alberta, and just as the federal government might have a different opinion from what's happening in the territories. You construct confederations in which you can get answers to those questions that arise from difference, but you need proper procedures and proper principles to do that, and indigenous law is a part of that network.

[The Chair, Liberal, Bob Bratina]

We're at time right there. Thank you very much.

Ms. Bérubé, you have the floor.

[Sylvie Bérubé, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Mr. Cardinal, I want to thank you for your presentation.

Obviously, we can't change the past, but we can shape the future. We mustn't “waste” this crisis. We must understand the mistakes of the past so that we don't repeat them in the future.

Mr. Cardinal, how do you think that we can avoid “wasting” the crisis? What's causing the crisis? What could have been done to prevent it?

[Éric Cardinal]

We must indeed learn from this crisis to prevent it from happening again.

As I said earlier, if the fundamental issues surrounding the land rights and governance of first nations and nations aren't resolved, this type of crisis could happen again, although it may take other forms. The Wet'suwet'en Nation's situation parallels the situation in a number of other nations and in several parts of the country.

We must review how agreements for the recognition of land rights are negotiated. It makes no sense that unceded traditional territories have been the subject of territorial negotiations for 40 years without any agreement reached. The agreement on the recognition of land rights would also resolve the issue of internal political governance.

We can take the example of the James Bay Cree, who signed a modern treaty in 1975. Their political system and governance reflect the traditional normative orders that the Cree had. Think, for example, of the tallymen and the councils that may differ from band councils.

As a result, for several years now, the James Bay Cree territory has been developing in partnership and under joint management with the governments of Quebec and Canada, and with businesses. The territory has no legal uncertainties, or at least, far fewer uncertainties. It's much easier to carry out projects while respecting the rights of the Cree Nation, in this case.

[Sylvie Bérubé, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Mr. Cardinal, what do you think of the federal government's comprehensive land claims policy?

[Éric Cardinal]

As I said earlier, the policy is outdated. In any event, everyone acknowledges this. The current policy dates back to 1987, if I'm not mistaken. The policy is ineffective and it doesn't help achieve the objectives. Basically, the reason is that the federal government is both judge and jury, but also that the objectives aren't the same.

For the government, the objective is to ensure legal certainty, simplify rights regarding territories and freeze agreements over time. For first nations, the objective is the recognition of their rights. They no longer want their rights taken away. Instead, they want recognition. They see treaties as things that evolve and that can change over time. Already, from the start, the objectives aren't the same and are sometimes contradictory.

This process actually makes negotiations very difficult, especially when the issues are complex and the territory is urbanized. Most modern treaties are signed in northern territories, where there's less urbanization. This makes negotiations a little easier. However, negotiations are much more difficult in more urbanized territories, because the policy states that third-party interests must be taken into account, obviously.

The current system makes it impossible for this process to work. The public servants who manage programs and policies proceed according to directives and administrative procedures, whereas treaty negotiations are a political process. There must be a political discussion, but it must be conducted on a basis of equality and not in a power relationship that favours one side over the other.

That's why we need an independent mechanism. It could be both an independent political process and an independent legal process, such as a tribunal. We're thinking of the Specific Claims Tribunal. However, there could be a tribunal for the recognition of aboriginal rights, similar to the Waitangi Tribunal in New Zealand, for example.

[Sylvie Bérubé, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Given the land claims of the first nations in Quebec, do you believe that we could face crises similar to the one in British Columbia?

[Éric Cardinal]

This type of crisis is very likely to happen again, absolutely.

As I was saying, large territories are still unceded by various nations. In Quebec alone, most first nations haven't signed a treaty with the Crown, so they're still in the process of making land claims. On these territories, some projects can be contested. If there's no recognition of title, the first nations have difficulty asserting their interests and having their rights to the territory recognized. To protect their rights and their territory, they must either go to court or oppose the project on the ground.

If we don't create a framework that promotes dispute resolution and rights recognition, I'm concerned that this type of crisis will indeed happen again.

[Sylvie Bérubé, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

If the barricades on the railways had been forcibly removed, as some suggested, what would have been the impact of the violence?

[The Chair, Liberal, Bob Bratina]

Please keep your response short, Mr. Cardinal.

[Éric Cardinal]

In short, it would be a bad idea to involve the police or to use force on indigenous territories. It wouldn't be the solution or the way to resolve conflict because it would lead to more conflict and animosity. It would also create conflict between non-indigenous Canadians and indigenous people, which would lead to radicalization among some people and would reinforce the prejudices held by many Canadians against indigenous people. The use of force should be avoided whenever possible.

[Sylvie Bérubé, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you.

[The Chair, Liberal, Bob Bratina]

Thank you.

We will go to the New Democratic Party. Ms. Gazan, you have six minutes.

[Leah Gazan, NDP, Winnipeg Centre, MB]

I will be splitting my time with Ms. Ashton.

I wanted to start with a question for you, Ms. Tait-Day. Thank you for being here today. I wanted to start by saying that as an indigenous woman, I echo your concerns that often our voices are muzzled. It's a fine time that our voices are lifted up. I wanted to honour that and honour that experience.

I know that you mentioned that the current relationship with the hereditary chiefs has had issues that reflect the patriarchy, but as you know, the Indian Act structure is also reflective of patriarchal domination. It continues to contain policies that continue to violate the human rights of indigenous women.

This is my question: In stating this, do you believe the way forward is to get rid of the Indian Act and replace it with the human rights contained in the United Nations Declaration on the Rights of Indigenous Peoples? That also includes the right to self-determination over our economic, social and cultural development.

[Theresa Tait Day]

Absolutely, I do agree with that. You have to remember that we have been living in a state of oppression for 150 years. It's going to take a long time for people to have the ability and the confidence to move out of that oppression. We haven't had that. Instead, we are being oppressed by these males who want to make decisions for the entire nation and to leave women out of that dialogue. That is not our way. They have changed the way they do it. They have actually bullied our women. They have taken the names of three of our women. They say they've taken mine, but they haven't; I am a hereditary chief. Names are passed through the family. You cannot go and take somebody else's name and call yourself a hereditary chief. That's not how it works.

The problem here is that.... What we need is something like the Cree example, where they have a governance system in place. We need a governance system that is inclusive of our nation.

[Leah Gazan, NDP, Winnipeg Centre, MB]

I would agree. I would also mention that that particular system—that whole framework—is within the United Nations Declaration on the Rights of Indigenous Peoples.

[Theresa Tait Day]

Yes.

[Leah Gazan, NDP, Winnipeg Centre, MB]

I say this because I find that this country has a history of colonial interference that causes conflict within communities. Do you think that the government should stop interfering with this process and allow the Wet'suwet'en peoples to make decisions on their own?

I say that because I'm wondering if this would have even been brought up as a motion about the hereditary chiefs if they were the ones supporting LNG, not the Indian Act chiefs. I see that conflict occurring. It's disturbing. I want to hear your thoughts about that.

[Theresa Tait Day]

I believe our communities and our nation need to work toward a governance model. That is true, but we're facing historical oppression. I think we need to work that out before we can even come to a decision about how we're going to manage ourselves. We cannot have these males telling us that this is the way forward. We agree on aboriginal rights and titles, but it has to be a process.

[Leah Gazan, NDP, Winnipeg Centre, MB]

I totally agree. I would say the same patriarchal human rights violations need to stop against indigenous women in the Indian Act.

I'm going to pass it over to my colleague, Niki Ashton.