Indigenous and Northern Affairs Committee on March 23rd, 2021

[The Chair, Liberal, Bob Bratina]

I call this meeting to order, acknowledging first of all that in Ottawa we meet on the traditional unceded territory of the Algonquin people.

Pursuant to Standing Order 108(2) and the motion adopted on February 25, 2021, the committee is continuing its study on the subject matter of Bill C-15, an act respecting the United Nations Declaration on the Rights of Indigenous Peoples and to make related and consequential amendments to other acts.

Before I continue, I see that Ms. Gill has her hand up.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you.

I would like to raise a point of order, Mr. Chair, simply to ask for the unanimous consent of committee members to have access to the digital binder for the duration of the study of Bill C-15. I was not given access.

I would like to get unanimous consent from committee members.

[The Chair, Liberal, Bob Bratina]

Thank you very much, Ms. Gill.

Let me put it to the committee that access to the binders typically would not be in order. However, we could agree, on unanimous consent of the committee, notwithstanding the routine motion governing the distribution of documents, that Ms. Gill and Ms. Gazan be granted access to the committee's digital binders for the duration of this study on the matter of Bill C-15.

Do we have any objections from anyone on our committee to allowing the digital binders to be shared?

Seeing none, I will ask for unanimous consent, by a show of hands, to allow the binders to be shared.

[Some hon. members]

Agreed.

[The Chair, Liberal, Bob Bratina]

So by unanimous consent, we agree to share the digital binders with Ms. Gill and Ms. Gazan, granting them access to the binders for the duration of the study and any study pursuant to the order of reference thereof. Thank you very much.

Ladies and gentlemen, to ensure an orderly meeting, participants may speak and listen in the official language of their choice. The issue with microphones is very important. We cannot properly conduct our meeting unless it is fully and clearly translated in our two official languages. You may switch from speaking one language to another, no problem. Ensure your video is turned on while you are speaking. Please speak slowly and clearly. When not speaking, have your mike on mute.

Mr. Clerk, I understand everyone has been pre-tested. Thank you.

Moving on, members of the committee, we have with us today, by video conference, the following witnesses: Dale Swampy, president, National Coalition of Chiefs; regional chief Terry Teegee, representing the BC First Nations Leadership Council, accompanied by general counsel Merle Alexander; and executive chair Harold Calla and CEO Geordie Hungerford, representing the First Nations Financial Management Board.

Thank you, all, for taking the time to appear. We will open with six-minute statements from each, followed by our questioning.

President Swampy, please go ahead for six minutes.

[Dale Swampy, President, National Coalition of Chiefs]

Thank you, Mr. Chair.

Good morning. Thank you for the opportunity to speak with you today as you study Bill C-15.

I am presenting to you today from the traditional territory of the Tsuut'ina Nation near Calgary, Alberta, and the traditional territory of the Treaty 7 first nations in southern Alberta.

My name is Dale Swampy. I am the president of the National Coalition of Chiefs, a coalition of industry-supportive chiefs. Our mandate is to defeat poverty on first nations reserves. We work to establish mutually beneficial agreements between first nations and industry partners in an effort to enhance the economic prosperity of reserve communities.

I am also a member of the Samson Cree Nation.

I think UNDRIP is important and significant in many ways, and I obviously support indigenous rights. However, I am skeptical about Bill C-15 itself. I think it needs to be written much more carefully, because as it is drafted today, it is obvious to me that it will deter investment in Canadian resource development, and that hurts the indigenous communities that rely on resources as much it hurts anyone.

Most of us want to attract investment to our territories. We want economic development and jobs and own-source revenues. In fact, UNDRIP affirms that very right to determine and develop priorities and strategies and to develop use of our lands, territories and other resources. This right is meaningless if we can't attract financing or business partners to develop our resources because the law is unclear.

I've spent my professional life in first nations and the oil and gas industry. I know first-hand what happens when federal bureaucracy gets in the way of development.

However well intentioned Bill C-15 is, my discussions with legal experts, industry representatives and investment bankers have persuaded me that it is introducing another layer of uncertainty and risk to development in indigenous territories. That is because it adds to the confusion about who has the authority to provide or deny consent on behalf of indigenous people, be they chiefs and councils, hereditary chiefs or small groups of activists. It also implies that a single nation can then deny consent—a veto in practice, if not in name—for projects that cross dozens of territories, be they pipelines, railroads or electricity transmission lines.

I think the uncertainty in the legislation makes it likely that it will be used to delay resource development projects by groups that oppose extractive and other resource projects under any circumstances, even those of which indigenous nations are overwhelmingly in favour and have equity ownership. I've seen first-hand how environmental groups can push their own agendas and use indigenous rights against our own interests.

Federal government structures have often worked to deter investment in indigenous lands and territories and to reduce our business competitiveness. Bill C-15 has the potential to add one more barrier between indigenous peoples and industry, on top of the Indian Act and other legislation.

The added uncertainty, hurdles and risk to development on indigenous territory make it difficult for our nations and businesses to attract investment and make it more expensive to do so when they can, due to risk premiums.

Undermining our own economy is not a recipe for prosperity and self-determination. The simple fact is that most of our communities need resource development in order to prosper. We don't need legislation that will make that harder.

I want to touch on one last thing before I close, and that is standards of consultation and consent. The federal government has imposed very high standards of consultation on industry, even to the point where projects that first nations want to see happen can't attract investment because the process is too burdensome, expensive or unclear. Now, with Bill C-15, I don't see you applying those standards to yourselves.

COVID-19 is restricting the ability of our chiefs to travel to Ottawa to speak directly with representatives of Parliament and share our thoughts and concerns regarding the bill. Our leaders are busy dealing with public health issues. They need the time to understand, before legislation is passed, how it will affect indigenous peoples in practice, what it will mean to the approval of processes for projects on our territories, and how the proposed action plan will be developed.

Article 19 of UNDRIP specifically says that you need the informed consent of first nations and all indigenous peoples before you pass legislation that affects them. I know you don't have universal consent for Bill C-15. I know many chiefs who are concerned and want, at the very least, some more time to better engage with and understand the implications of Bill C-15 and want to have input into how it's written. What is your understanding of how you need to obtain and demonstrate indigenous people's consent to pass this legislation? How you define it to pass this bill and what you think is a reasonable standard should not be different from how you expect industry to obtain consent on other projects. In fact, I would think you'd hold yourselves to a higher standard, especially on this piece of legislation.

Thank you for your time. I look forward to your questions.

[The Chair, Liberal, Bob Bratina]

Thank you very much, President Swampy.

Next we have Regional Chief Terry Teegee, representing the B.C. First Nations Leadership Council, accompanied by general counsel Merle Alexander.

Please go ahead, for six minutes.

[Regional Chief Terry Teegee, Regional Chief of Assembly of First Nations (British Columbia), BC First Nations Leadership Council]

[Witness spoke in Dene as follows:]

Marsi cho, Dene zą.

[Dene text translated as follows:]

Thank you. I am Dene.

[English]

Members of Parliament, first of all, I want to acknowledge the territory that I am on, the Lheidli T'enneh Dene people of the Dakelh territory near Prince George, British Columbia. I want to also acknowledge the territories that you are broadcasting or attending this meeting from: that they are indigenous lands and have always been indigenous lands since time immemorial.

I want to thank the committee for the invitation to offer some remarks. I am honoured to speak on the topic of federal legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples. This marks a significant turning point in the history of this country and follows a historic occasion in the province of British Columbia. On November 28, 2019, the Declaration on the Rights of Indigenous Peoples Act, DRIPA, passed unanimously in the B.C. legislature with support from all parties in British Columbia.

DRIPA was widely supported by first nations in British Columbia. It represents a sea change from the provincial government's tradition of denying and opposing our titles, rights and existence as distinct peoples and an acceptance of the Truth and Reconciliation Commission call to action 43 “to adopt and implement the...Declaration...as the framework for reconciliation”.

This was a turning point in B.C. While much hard work lies ahead, we are starting to see a shift toward the human rights-based approach required by the declaration.

As an example, last fall the B.C. government commissioned a comprehensive review of anti-indigenous racism in the provincial health care system, promoting article 24 of the declaration and affirming indigenous peoples' rights to access to health care without discrimination.

Historic and recent events demonstrate the imperative for concrete measures to address racism in our society and the responsibility of the public governments to act. The United Nations declaration is a global human rights instrument, and human rights cannot be fully enjoyed where there is racism and discrimination.

The anti-indigenous racism and discrimination that continue today underscore the appropriateness of the human rights-based approach to reconciliation. Reconciliation cannot be based on denial of rights or racism. This is inherently contradictory and incompatible with upholding human rights.

Bill C-15, with the improvements, is an important next step in Canada's implementation of the declaration. It is a long overdue pathway for change, predicated on respect for human and inherent rights and the repudiation and eradication of racist and colonial constructs and doctrines that have no place in this country or our relationships.

The preamble is important, as it speaks to our collective history in Canada and the legacy of colonialism that has had tragic and profound impacts on first nations across the country, underscoring the need for the United Nations declaration to apply in Canada.

The bill must be clear that Canada is repudiating the doctrines of advocating superiority, like the doctrine of discovery and terra nullius. All interpretations of indigenous rights from an era based on colonial denial cannot continue. It must also be clear that implementation of the United Nations declaration is a responsibility of all in government to take actions and ensure consistency of laws as required under article 5.

Further, it is imperative that the co-operation and consultation carried out under the bill reflect the constitutional relationship between the Crown and indigenous peoples and key standards of the declaration, such as free, prior and informed consent. The bill must clarify and specify mechanisms and a plan needed for achieving consistency of laws. The new pathway will see laws of Canada shift to be more inclusive and respectful of the rights and our unique relationship and see new actions and approaches of partnership and participation.

Bill C-15 will complement the B.C. declaration act and contribute to the strengthened foundation of Crown-indigenous relations and reconciliation in B.C. where treaties were not concluded throughout the province and the land question remains largely outstanding, as does the implementation of pre-Confederation Douglas treaties.

The implementation of the declaration through laws and action by both Canada and the Province of B.C. will be a strong foundation for innovation and principled negotiations, improving and expediting the negotiation and conclusion of robust, enduring rights-based treaties, agreements and other constructive arrangements in British Columbia.

The work of upholding and protecting indigenous human rights is urgent, particularly during a global health pandemic, when human rights are vulnerable and unordinarily impacted. The urgent need to respect and promote the inherent rights of indigenous peoples is stated in the preamble. There are many actions that can and must be taken immediately and not delayed. This should be reflected in the time frames in the bill.

Chiefs in British Columbia have indicated that they believe this legislation meets the floor of the former Bill C-262, although they have identified areas where improvements are needed to address some drafting issues that may cause confusion and to reinforce issues of importance, such as those I have referred to here. We have provided you with a written table of our recommended improvements. We are happy to make ourselves and our technical staff available to further brief you, should you wish for more information regarding our position.

I thank you for the time today to speak in support of Bill C-15.

Mahsi cho.

[The Chair, Liberal, Bob Bratina]

Thank you very much, Chief.

Next we have Harold Calla, executive chair of the First Nations Financial Management Board.

Please go ahead for six minutes.

[Harold Calla, Executive Chair, First Nations Financial Management Board]

Thank you, Mr. Chair.

Thank you for the invitation to be here today. It came to us only yesterday, so while we do have some opening comments, we will be preparing a fuller written brief that will be sent to you.

I want to thank our regional chief for his comments and Dale for his comments, most of which I agree with.

I am a member of the Squamish First Nation, part of the Coast Salish community here in British Columbia, and have been involved in my community since 1987, dealing with many of the issues that existed in the colonial relationship between us and the Government of Canada that have resulted in litigation, poverty and social dysfunction in our communities.

We have to ask ourselves how we can change things. First and foremost, we have to recognize that things have to change. Then we have to start discussing and engaging with one another on how that change will take place.

Change will not occur and be successful unless we recognize that there needs to be a place in the Canadian economy for indigenous communities and that their rights and title do attract a duty on the part of Canada to accommodate first nations and to engage with first nations around the decisions that are involved in resource extraction kinds of activities.

The Financial Management Board was founded as a result of all-party support in the House of Commons in 2005. It was developed as a result of first nations wanting to come together to advance their economic interests in ways that could not be done under the existing Indian Act.

The result is that we now have over 300 first nations scheduled to the act; we have over 200 with financial administration laws and about 190 with financial performance certificates. Through the First Nations Finance Authority, we have been able to raise, on behalf of first nations, about $1.3 billion in resources, which they've been able to invest in their economies. Most notably, as you are all probably familiar with, there has been the Clearwater transaction in Atlantic Canada. This comes about as a result of capacity being developed in first nations communities to understand the kinds of opportunities that exist before them.

I would suggest to you that we need clarity around aboriginal rights and title, and I don't accept the notion that this doesn't begin that process of providing some clarity. You need to understand that the lack of clarity today is what has strangled resource development in this country for the last 10 years. We need to change that dialogue. We need to be in a position where “free, prior and informed consent” is not just a term but is something that's practised.

In order for that to be the case, the passage of this bill will trigger the required massive investment in Indian communities so they can engage with the private sector and the Government of Canada on an equal footing to create the means by which aggregation can occur so that information can be supported and decisions can be made.

I think there's a mistaken notion that everyone must agree. Not everyone is going to agree on anything. That agreement doesn't happen in your communities, and it's not going to happen in ours. The question is how we deal with those differences. I'm suggesting to you that it's better if we are allowed to try to deal with them ourselves.

The success of the First Nations Major Project Coalition over the past six years has taught me that communities can come together and support one another on some of these projects. They have actually have done so and have developed environmental stewardship frameworks and advanced some really important projects within their traditional territories. The coalition has offered a place for first nations communities to seek the advice and support they need so they can take their aboriginal rights and title and do the due diligence required to see how they can actually implement projects instead of talking about them in theory.

Access to capital is going to be absolutely critical in this process for first nations to engage in the development of their economies. Through the Fiscal Management Act, we have proven that pooled borrowing, with the support of Canada, can be a great success.

I think we have to not be afraid of UNDRIP. We have to embrace it as an opportunity that has come about that will allow us to undo what the past has brought upon us. I think that's going to be important for us in the future.

I know that some will argue that this will create undue hardship for the private sector and the Canadian economy. I suggest to you that this is the exact opposite of what will occur with this kind of clarification. I think we have seen that occur in British Columbia with the work of the Major Project Coalition and the support of Coastal GasLink. My own community issued its own certificate to develop the Woodfibre LNG project. We engaged in our own process.

I think by this engagement process, by developing capacity and by providing the resources that allow for the due diligence to be done, you'll get to free, prior and informed consent in a way that everyone can have some confidence in it. You need to create the framework for first nations that may not be that large and that may not have the resources to be able to have access to the capacities that they need to deal with the matters that come before them. It doesn't matter whether you're the Squamish Nation with 4,000 people and a significant budget or you're a smaller community in the north—the decisions that are required are the same. The capacity gap between the two circumstances can be quite different unless we create a model that allows for this aggregation and support for the knowledge that's required to make these decisions.

With that, Mr. Chair, I thank you for this opportunity. I will remind you that we will be providing you with a brief on this matter sometime in the near future.

[The Chair, Liberal, Bob Bratina]

I appreciate that.

To all of our witnesses today, if anything perhaps doesn't come up and you wish to point it out following the meeting, you can certainly submit a further written submission to our panel [Technical difficulty—Editor] to consider. Thank you.

Now we will go to our six-minute round of questioning.

Eric Melillo, you are up first. Go ahead for six minutes.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Actually, Mr. Chair, I think I am up first this morning, if that's all right with you.

[The Chair, Liberal, Bob Bratina]

My apologies. Okay. Go ahead, Gary.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you, Mr. Chair.

I want to first of all thank all of our witnesses for taking the time to be here with us. I realize that some of this is happening at the last minute, as Mr. Calla spoke of, so we appreciate your accommodating us and being here on short notice in some cases. That was excellent testimony by all.

I want to start with President Swampy and then get to the others, if the chair will grant me enough time to do that. We seem to run into issues with that sometimes.

Mr. Swampy, you spoke in your opening comments about many of the benefits and some of the very good elements of this legislation. I think we would all agree that there are very good components to this. You also spoke of some concerns around the legislation. I did a little research yesterday, and I looked at the mandate of your organization. It states very clearly that the National Coalition of Chiefs is committed to defeating “on-reserve poverty”. That's the reason your organization exists.

It seems in our political world that those who champion poverty reduction through economic development often get labelled as not having compassion for the people. I would argue that it's exactly the opposite of that. We do have that compassion. I would like you to speak for a couple of minutes about how in that spirit of compassion, in that spirit of wanting to reduce on-reserve poverty or defeat on-reserve poverty, responsible participation in economic development is key to that, in your experience.

[Dale Swampy]

We believe the natural resource industry is the strongest industy in Canada. We have focused our means to our goal to partner with natural resource industries in order to bring us out of poverty. We believe poverty is the cause of all our social ills. Teenage suicide, domestic violence, lack of education—everything you can think of that we have been struggling with for the last 150 years has come because we do not participate fully in this economy. In order to participate fully in this economy, we need to grasp the natural resource industry as an ally. We need to work with the natural resource industry fully and to participate in, and in some cases lead, the natural resource industry. We've seen that happen in northern British Columbia with TMX, and the desire for first nations to go out there and become part of this natural resource industry.

We believe the government has the duty and the right to recognize this problem that exists and that continues to fester within our communities. If we cannot excel in our ability to participate in natural resource industries—through legislation that will stifle investments—then we will be subject to abject poverty for many generations to come.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you. I really appreciate your answer.

I'm going to come back to you, President Swampy, and then, Mr. Calla, could you answer this question as well? I have about two and a half minutes left, so I'm going to try get my question in quickly and give you both an opportunity here before the chair cuts me off.

We have heard over and over again from people how the action plan that is proposed in this legislation has the opportunity to bring clarity and to remove some of the uncertainty here. My question is really simple. On the action plan and its three-year window going out, we're hearing that maybe there is some uncertainty that is created.

Would there have been some benefit in doing the action plan in the lead-up to the actual legislation, like, for example, New Zealand has done? Would it have brought about a reduction in some of the uncertainty, from your perspective, in the investment climate and that element in all of this?

[Harold Calla]

Well, I think it may well have. We are always finding ourselves in a position where we have to take what's being presented and then implement it and improve upon it. I don't think that I look at this as a failure of this initiative. I look at this as an opportunity to understand that this is going to become a living process. It will never be finalized. We will always continue to improve upon it as we move forward.

That doesn't mean that we can't begin to do the work and to be in a position where we can admit that we need to make some changes in the future. You've got to start somewhere. In my 35 years in this field, this is the best place that I see to start.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Thank you.

President Swampy, would you like to respond to that as well?

[Dale Swampy]

Yes. We are having a hard time understanding exactly the process and whether or not it's going to provide any real benefits to first nations communities. Canada itself is a premier leader in human rights. Canada is a premier leader in the duty of industry and government to consult with first nations.

I believe UNDRIP legislation is good for third world countries that do not have the kind of human rights record that we have and for third world countries and developing countries that do not have the legal requirement for industry to consult with indigenous peoples. When Peru first incorporated its UNDRIP legislation, it was one of the first in the world to do such a thing, and that meant a lot for the indigenous peoples in that country—

[The Chair, Liberal, Bob Bratina]

I'm sorry. Can you just conclude?

[Dale Swampy]

Yes.

I believe what you say is true. The action plan should have been done before the legislation was passed.

[The Chair, Liberal, Bob Bratina]

Thanks very much.

Mr. Powlowski, you have six minutes.

[Marcus Powlowski, Liberal, Thunder Bay—Rainy River, ON]

I'm interested in how and if Bill C-15 will change the current law, especially with respect to aboriginal title. President Swampy says that Bill C-15 will create more uncertainty. On the other hand, Mr. Calla says that this is the start of a way forward to create clarity.

I'm wondering if there is anything in UNDRIP that changes the modern notion of aboriginal legal title as most recently established by the Tsilhqot'in decision. I'm no expert on aboriginal land title, but it seems to me that case decided that title was sui generis, but it was a beneficial interest in the land. There was some limitation, and the limitation was that the land couldn't be used in a way that would deprive future generations of the benefits of the land.

To me, in looking at UNDRIP, I'm not sure how much it really changes anything, but I'm interested in what the panellists have to say about that. Is there any substantial change from the law as it currently is?

Maybe I can start with President Swampy, because I think he probably has an opinion on this.

[Dale Swampy]

Yes. I don't believe that the legislation, in our discussions with legal experts.... Unless FPIC has some real value and actually does give veto power to the first nations, I don't think any rights that are incorporated within the UNDRIP legislation actually enhance any rights that we already have.

[Marcus Powlowski, Liberal, Thunder Bay—Rainy River, ON]

What is the opinion of the First Nations Leadership Council of B.C.?