Indigenous and Northern Affairs Committee on March 11th, 2021

[Romeo Saganash]

Thirty seconds? Okay.

I commented on that extensively. Veto and FPIC are two different legal concepts. One is absolute, and that is veto, whereas as the other one is relative. Like all human rights, the right to free, prior and informed consent is relative. We have to take into consideration a lot of other factors and facts and the law and the circumstances of a given situation. They're two very different legal concepts in terms of the FPIC that we're talking about.

Yesterday I did send to the clerk the study that the Expert Mechanism on the Rights of Indigenous Peoples did on FPIC. If I recall, paragraph 20 of that study done by the UN describes the constituent factors or “[c]onstituent elements of free, prior and informed consent”. I invite all members of this committee to look into that.

[The Chair, Liberal, Bob Bratina]

Thanks very much, Mr. Saganash.

Madam Bérubé, go ahead for six minutes, please.

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

It is actually Mrs. Gill's turn, Mr. Chair.

[The Chair, Liberal, Bob Bratina]

I'm sorry.

Madam Gill, you're next.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you, Mr. Chair. My thanks also to my colleague.

First, I would like to thank Mr. Saganash. I did so earlier but he had not yet joined us. I thank him specifically for the important work he has done over the years and in the last Parliament. He has been working since 1982, as Ms. Lightfoot and Ms. Augustine pointed out.

We are now studying Bill C-15. I know that Mr. Saganash previously worked on a similar bill and that there are differences between the two. I would like him to tell us about those differences, in a qualitative sense. I would like to hear his comments, since they could make our work clearer.

[Romeo Saganash]

Thank you for your question, Mrs. Gill. It is always a pleasure to see you again. Thank you for the work you are doing on behalf of the Bloc Québécois on all these matters.

I mentioned in my introduction that there are differences between the French and English versions of Bill C-15. Subsection 2(2) is a good example of that.

Here is what it says in English:

This Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.

But here is what it says in French:

2(2) La présente loi maintient les droits des peuples autochtones reconnus et confirmés par l’article 35 de la Loi constitutionnelle de 1982; elle n’y porte pas atteinte.

The two versions are different. Actually, I prefer the French version; it is much clearer as to the intent of this provision of Bill C-15.

[Marilène Gill, Bloc, Manicouagan, QC]

I find that to be an excellent comment. We must work on the same bill, not on two different versions. We must work on the same bill in both French and English. I feel that we have to take that into account from now on as we think about the witnesses we will be hearing from and the people who will have to focus on the bill.

I have another question that everyone is invited to answer, including Ms. Lightfoot or Ms. Augustine. In her introduction, Ms. Lightfoot talked about rights being watered down, and that caught my attention. This bill is intended to ensure that the United Nations Declaration on the Rights of Indigenous Peoples ends up being implemented. So I am concerned that there may be some slippage towards those rights being watered down.

I don't know whether anyone is able to talk about that really broad issue.

[Chief Lorraine Augustine]

I will tackle that question if you don't mind. The other panellists can as well.

When it comes to the piece of legislation, again we are still left out because of the distinctions-based approach of the government. They look specifically at rights under section 35. According to the way things are now, I'm a registered Mi'kmaq; I'm status; but because of where I choose to live they're telling me and other members of my organization and the constituency of the congress that we are not rights bearers.

My concern with this piece of legislation is with what they're going to be leaving out. This legislation reaffirms that indigenous peoples have rights—treaty rights, aboriginal rights, other rights—but I'm really not for this unless this government makes it available to and talks about all indigenous peoples. Right now that is not happening.

I'm not sure if I answered your question or not.

[Marilène Gill, Bloc, Manicouagan, QC]

Yes, you have given us a lot of information and you did answer my question. As a lawmaker, I can improve my work as a result.

Does anyone else wants to add something about this? If no one does, I will ask another question.

[The Chair, Liberal, Bob Bratina]

I'm sorry, we have two seconds left.

[Marilène Gill, Bloc, Manicouagan, QC]

Is my time up already?

[The Chair, Liberal, Bob Bratina]

I'm sorry about that, but it's nice to see the camaraderie.

Yes, go ahead.

[Dr. Sheryl Lightfoot]

Very briefly, one of the differences between the British Columbia bill and this bill was the inclusion of indigenous governing bodies in British Columbia as part of the legislation. I would like to table that as something to be considered.

[The Chair, Liberal, Bob Bratina]

Thank you for that.

Ms Blaney, go ahead, please, for six minutes.

[Rachel Blaney, NDP, North Island—Powell River, BC]

Thank you, Chair.

Thank you to all the members here for your testimony.

Mr. Saganash, It's very nice to see you again.

As you are a jurist, I know you understand the difference between FPIC and a veto. I am wondering if you could explain the difference to the committee.

[Romeo Saganash]

As I mentioned earlier, I did send a copy of the study the UN did on the concept of free, prior and informed consent. I invite all members of the committee to review it. It's an important document for your consideration, especially when considering Bill C-15.

Free means no coercion or intimidation. For instance, I can give you the example of the Site C dam where BC Hydro intimidated the opponents of the project with lawsuits of $4.3 million per individual. That's called intimidation. You're not allowed to do that.

No coercion, no intimidation is what free stands for.

Prior means these discussions for this engagement with indigenous peoples that may be impacted by a project need to happen prior to any decision taken about a project.

Informed means that we need to have access to studies and information that is readily accessible to the people you represent. For instance, for a long time Hydro Québec provided the Cree with studies about the impacts of their projects on my people but solely in French, not in English, not in Cree, so we cannot be informed if that's how things are going to happen.

All three of these steps need to happen prior to embarking on a specific activity and that's how Thierry Rodon, who testified in the first hour, talks about this. I read his paper, and it's consistent with what the UN has been saying about free, prior and informed consent.

Like all human rights, the right to free, prior and informed consent is a relative right. You need to take other factors into consideration, whereas a veto is an absolute concept that doesn't take into consideration the law or the facts or circumstances of a given case.

[Rachel Blaney, NDP, North Island—Powell River, BC]

Thank you.

Romeo, the committee recently received a letter from the Confederacy of Treaty Six First Nations, basically cautioning that Bill C-15 will have an effect of changing the definition of “indigenous persons” as defined in international law.

Can you speak to this important matter? Has the UN ever adopted a definition of “indigenous people”?

[Romeo Saganash]

That's a good question and an important question, I believe.

I can say firmly that there is, to my knowledge, no UN body that has adopted a definition for “indigenous peoples”.

The only definition I am aware of is a 1972 working definition by Martinez Cobo, who did an important five-volume study that was given to the UN in 1978, I believe. The working definition back in 1972 was never adopted by the working group on indigenous populations, or by any UN body.

In fact, I can also add that the two international covenants that I spoke about, signed by Canada in 1976, the Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both in their articles 1, talk about the right of all peoples to self-determination.

In international law, the term “peoples” was never defined; there is no definition for “peoples” either.

I think it's important to be aware of that, because once you decide to define something, then you end up excluding others. I think that's the main reason behind the UN not adopting a definition for indigenous peoples.

[Rachel Blaney, NDP, North Island—Powell River, BC]

Another concern raised by opponents of Bill C-15 relates to the claim that Bill C-15 domesticates or Canadianizes the United Nations Declaration on the Rights of Indigenous Peoples.

Do you agree with this assertion?

[Romeo Saganash]

Absolutely not. It doesn't. I think that Bill C-15 just confirms that this international human rights instrument, like all other international human rights instruments, has application within law, in the sense that any court, in its impartiality, can refer to this international document to interpret domestic law.

It's the opposite. I think it's from a domestic perspective that we need to consider these other documents to interpret the rights in this country, so it serves...in that sense.

[The Chair, Liberal, Bob Bratina]

Thanks, Mr. Saganash.

Madam Gill, do you have a point of order? I see your hand up.

[Marilène Gill, Bloc, Manicouagan, QC]

Yes, Mr. Chair.

Mr. Saganash brought up the fact that the bill is not the same in both languages. I would like the Liberal Party to tell me which of the two versions should take precedence in the study we are now doing and whether there will be a motion to ask for a bill that's identical in both languages?

[The Chair, Liberal, Bob Bratina]

Let me ask to continue on with the round of questioning and we'll close with that point of business.

Jamie, you have five minutes in this next round of questioning.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

It's good to see so many familiar faces again. It's been a great conversation so far.

I'd like to start with Ms. Augustine, if I could.

I noticed in your opening statement that there was a brief mention about the consultation process. Some organizations were given lots of time to consult and think and come back with responses, and other organizations were not. Did you want to expand on that a bit?

[Chief Lorraine Augustine]

Absolutely. Again it goes back to the distinction base of first nations, Inuit and Métis, three national organizations that were given at least six months of preparation and consultation. The Congress of Aboriginal Peoples was given two days prior to going here. The Department of Justice contacted us at the 11th hour of the 11th day to give our input.

Our input was given. We weren't going to refuse because they contacted us, and obviously we're going to be there.

That's the difference in the consultation process where other routes.... Again, I'm going back to the distinction base; the interpretation is even in the bill. Canada is the only country that is interpreting its indigenous peoples, which is wrong. Indigenous peoples are indigenous peoples, and it shouldn't be distinctions-based. We were discriminated against in the consultation process too. We never got the same opportunity as other groups.