Indigenous and Northern Affairs Committee on March 30th, 2021

[Paul Joffe]

To us it's always been about co-operation. If we work together.... In order to persuade Africa, we were told we had to meet with the most hard-core countries that existed in Africa, because they always take the lowest common denominator for remaining together. We did that, and we had a very good relationship. Mainly it was about being genuine and talking about real issues, understanding the positions of the people or countries you are speaking with and then together coming to some kind of consensus.

That's what occurred over 24 years on the UN declaration. I think a lot of indigenous peoples—I can't speak for them; they can each speak for themselves—felt there's a lot of confidence worldwide to proceed on this basis. Countries each year keep reaffirming the UN declaration. They also keep reaffirming free, prior and informed consent. It's not seen as a veto. Yes, there are different entities that may see it as a veto. The UN does not consider it a veto.

Human rights are generally not absolute. They're relative, so you have to balance automatically your human rights with other people's human rights or other rights. There's a lot of potential for real co-operation where no one is left impoverished.

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

Thank you.

[The Chair, Liberal, Bob Bratina]

That leaves us 10 seconds.

Thanks, Jaime.

Ms. Gill now has the floor.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you, Mr. Chair.

I thank all of the witnesses who are appearing today.

My questions are for Ms. Langlois. I would like to take this opportunity to highlight all the work that Amnistie internationale does.

In your speech, you mentioned that we need to move expeditiously to pass Bill C-15. Perhaps this implies that there may be some difficulties to iron out. We didn't have time to pass Bill C-262; we don't want that to happen again with Bill C-15.

Is it possible to foresee difficulties that might prevent us from acting diligently? What difficulties might not be addressed by the subsequent implementation of Bill C-15?

[France-Isabelle Langlois]

I thank you for the question, Ms. Gill.

Members of the House of Commons as well as members of the Senate must act with diligence and without partisanship, while being guided by human rights ideals. I can only agree with everything that Mr. Paul Joffe has just said. We must not get caught up in false arguments, such as the one that claims that the implementation of the declaration would necessarily give a veto to indigenous peoples. That is not what the declaration prescribes. Rather, it speaks of human rights, of negotiation and collaboration among all peoples, and of redressing the injustices that have been done and continue to be done to indigenous peoples. The purpose of the declaration is to build together a better, just and equitable present and future for all the peoples of Canada.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you, Ms. Langlois. Actually, you started to answer another question I wanted to ask you.

You talked about the veto and free, prior and informed consent. We have heard several witnesses say that economic development and the passage of Bill C-15 about the declaration are irreconcilable.

What is your interpretation of this situation?

[France-Isabelle Langlois]

There is no opposition between human rights and economic development. Indigenous peoples have a right to economic development, too, and they want to be part of it. So we need to carry out that economic development with indigenous peoples where it concerns them or their territories, for example. There is no opposition between the declaration, respect for the rights of indigenous peoples, and economic development.

[Marilène Gill, Bloc, Manicouagan, QC]

Tell me if I'm wrong, but this means that the passage of Bill C-15 and its subsequent implementation would benefit first nations.

[France-Isabelle Langlois]

The passage of Bill C-15 would benefit not only indigenous peoples, but all of us. When economic development projects are implemented with the consent of the people involved, they are better off and develop better, for the benefit of all.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you very much, Ms. Langlois.

I have one last question for you.

We have been hearing from witnesses for the last few weeks, but you brought up something that we had not heard before, and that is the issue of women's rights and the double discrimination that they face, first because they are women, and secondly because they are indigenous.

If I'm not mistaken, you said that there should be improvements in this area as the bill is implemented. I would like to know if there is anything we can do before we even pass the bill. For example, can we make any relevant changes to the preamble of the bill?

[France-Isabelle Langlois]

Of course, a consensus must be reached in order to pass this bill, but we would welcome amendments to further affirm the importance of consultation not only with indigenous peoples, but particularly with indigenous women, as well as amendments clarifying that they are stakeholders in this bill and its implementation.

[Marilène Gill, Bloc, Manicouagan, QC]

I would like to ask you one last quick question.

[The Chair, Liberal, Bob Bratina]

You have 30 seconds.

[Marilène Gill, Bloc, Manicouagan, QC]

Some people told us that while they supported Bill C-15, they felt that the rights of indigenous peoples were already protected by section 35 of the Constitution.

Do you believe that the passage of Bill C-15 would do anything more? What are the distinctions between section 35 of the Constitution and Bill C-15? What makes the passage of the bill necessary for first nations? Of course, as you said, everyone would benefit from the passage of Bill C-15.

[The Chair, Liberal, Bob Bratina]

Answer very briefly, please.

[France-Isabelle Langlois]

In fact, the declaration goes further than section 35 of the Constitution, which is a political statement. The declaration provides a societal framework that recognizes the rights of indigenous peoples more specifically and governs their implementation. In addition, the declaration provides guidelines for living together.

[The Chair, Liberal, Bob Bratina]

I'm sorry. We'll have to stop there and go to our final questioner.

Ms. Gazan, you have six minutes.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Thank you so much, Chair, and thanks to all the panellists today.

My first question is for Mr. Joffe.

Could you share with this committee some of the important international developments relating to the United Nations Declaration on the Rights of Indigenous Peoples since its adoption at the UN General Assembly in 2007?

How have other jurisdictions and countries approached its implementation? How have the courts here and abroad referenced the declaration in interpreting indigenous rights?

[Paul Joffe]

Thank you for that question.

One thing that's progressing and always increasing is the number of states in Latin America that have included the UN declaration or certain critical provisions in their legislation and often in their constitutions. That's a huge development.

Also, this is really important in places like Africa and Asia. There are still challenges there. I'm not saying there aren't challenges, but this has been quite a big development. I'll give you an example.

Just before a vote, I asked a representative from one of the African countries why they were against the UN declaration. The person answered that the declaration forces them to make agreements with indigenous peoples and they never make agreements with indigenous peoples. In our ongoing discussions, it showed that by discussing it more, in Africa they were able to change their position enough to support the UN declaration. That's a huge change for millions of indigenous people. It's the same in Asia.

I'm not saying there aren't very serious challenges in both those continents, as there are everywhere else, but the UN declaration is like a common language of human rights. That's something people can build on because these countries have their own human rights legislation. Sometimes it's better and sometimes it's worse, but my experience has been that it has helped to rally real discussions.

The UN, for example, now has indigenous experts on key bodies in the UN to further this jurisprudence, and countries have accepted that. These are all very positive developments both now and for the future.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Because of the confusion the expression seems to give rise to, what is your understanding of preamble paragraph 18 and paragraph 4(a) of Bill C-15, where it is affirmed that UNDRIP is a source for the interpretation of Canadian law and has application in Canadian law?

[Paul Joffe]

What was the section of the bill?

[Leah Gazan, NDP, Winnipeg Centre, MB]

It was paragraph 4(a).

[Paul Joffe]

Paragraph 4(a) is critical because, first of all, there is a problem with 4(a). It says “The purpose of this Act is” and it has paragraphs (a) and (b) That is not one purpose. That goes below the standard in Bill C-262 that Romeo Saganash emphasized. It should be “The purposes of this Act are” and then you have paragraphs (a) and (b).

Paragraph 4(b) leads to the action plan. Paragraph 4(a) is an independent statement. It has application in Canadian law. Different courts, provincial courts and federal courts have already applied the UN declaration without this bill. Quebec has. Ontario has in a number of cases. That's both in provincial courts and also federal courts.

This goes to the very essence of the bill. There is no doubt that the UN declaration has application, because it does in many countries, even without a law.

Some people say it could lead, as I heard today, to unintended consequences. Every bill can be interpreted and one can say there could be unintended consequences, but it's pretty clear in the jurisprudence how it's evolving. It is evolving in Australia. In New Zealand there are many cases relying on the UN declaration. Indonesia even has an important case on the UN declaration.

I see that as a core provision, but “the purpose” should be changed to “purposes are”. It was never meant to have one purpose.

[Leah Gazan, NDP, Winnipeg Centre, MB]

I have one final question—

[The Chair, Liberal, Bob Bratina]

We are out of time, Ms. Gazan.