Indigenous and Northern Affairs Committee on April 13th, 2021

[National Chief Perry Bellegarde]

Maybe I'll ask Mary Ellen to go first, and then I'll make some comments right after her. I'm just bringing up the act here.

[Dr. Mary Ellen Turpel-Lafond]

Yes, thank you.

The reference in the bill to section 35 is one that, again, has been the source of some misunderstanding in some of the debate. Section 35 is in the Constitution Act. It was hard fought for. There are many first nations across Canada that have fought hard to get their rights affirmed through section 35, and they would very much like to have that there.

However, we know that in interpreting section 35, there have been decisions made over the years in a process that has not fully supported reconciliation and not fully supported this. There are concerns about some of those decisions and their harshness. But referring to section 35 is something that is pretty straightforward, because we already have it in the Constitution Act.

The idea is not in any way to limit the UN declaration to some sort of context of what was decided in an individual case. That's not how legislation works, and that's not how section 35 works. We're creating space with this bill to breathe greater life into section 35, but for those first nations who choose not to want to take their cases to court or to advance their rights in the context of section 35 and prefer to rely on, for instance, their treaties specifically, there's nothing that's limiting them.

I would say that the language, and in particular the proposals the AFN has brought forward, has been carefully prepared for you and your recommendation at this level by the national chief based on feedback and input from the chiefs of Canada. That is where it comes from. We are recommending some improvements to the text to be able to provide greater support for first nations who have brought forward these concerns. We don't think these are major corrections or changes. It's just a question of this being your opportunity to refine and improve the bill, and we are recommending some refinements and improvements to you.

[National Chief Perry Bellegarde]

Just further to that, Leah, as well, the new clause that I recommended, 2(4), says “For greater certainty, the rights of Indigenous peoples, including treaty rights, must be interpreted flexibly so as to permit their evolution over time and any approach constituting frozen rights must be rejected.”

We're trying to strengthen it, because we believe that section 35 is a full box of rights. We don't want to get into that debate of whether it is a full box or an empty box. It's a full box, with the inherent right to self-determination and self-government in there as well. We're just trying to be clearer in our recommendations within this new piece of legislation going forward.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Thank you so much, National Chief. I ask that question because I know that there has been some criticism or concern that this act Canadianizes or makes UNDRIP subject to Canadian law and section 35 of the Constitution. I would argue that's a legal misread.

Would you agree with that statement, and if so, can you please expand on that, Madam Turpel-Lafond or National Chief?

[National Chief Perry Bellegarde]

I'd agree with that statement, but I go to my learned colleague, Mary Ellen, for further comments.

[Dr. Mary Ellen Turpel-Lafond]

I agree fully with that statement. The declaration is an international instrument. It does contain the minimum standards. Through this bill, the laws of Canada will be aligned and will become more consistent through a process, and there is an action planning process. It does not take the UN declaration and subordinate it to some other process. That's not how this works. International instruments, conventions and the like must be implemented in Canada through implementing legislation like we have here or like was passed in the Province of British Columbia.

It does not alter our constitutional framework. What it does is raise our sights up to a standard that's been long overdue. Of course, there are no new rights in the declaration, but the way it is articulated advances meaningful reconciliation, as the Truth and Reconciliation Commission said, because the declaration itself can provide a framework.

I would be in full agreement with the statement that you've made. Unfortunately, some of the misunderstanding that is out there.... Again, I understand where it may come from because indigenous people have had many, many bad experiences, both with government and elsewhere, in trying to assert and seek recognition of rights. This is a shift, and it's a shift that's a major shift in Bill C-15 because it puts us on the foundation of recognition and working together differently. It should not be adversarial, which is why the Assembly of First Nations has very strongly supported this since Romeo Saganash brought it forward in the House of Commons as a private member's bill.

[Leah Gazan, NDP, Winnipeg Centre, MB]

So, it would have application in the interpretation of indigenous rights, just as the constitution, indigenous law, treaties, agreements and, going forward, court decisions do, right?

[Dr. Mary Ellen Turpel-Lafond]

I would agree with that. Thank you.

[The Chair, Liberal, Bob Bratina]

Thank you.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Okay. Thank you.

[The Chair, Liberal, Bob Bratina]

We're at time there.

We'll go to the five-minute round now.

Mr. Vidal, you're up first for five minutes.

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

Thank you, Mr. Chair.

Thank you, National Chief and other witnesses today. We do appreciate your time and contributions to this process.

I want to follow up a little bit on what my colleague, Mr. Schmale, did in his first round of questioning, and then I'll move on to a couple of other things if I can squeeze the time in.

Minister Lametti, on Bill C-15, specifically said that, if passed, this bill will not change Canada's existing duty to consult with indigenous people or change the other consultation and participation requirements under other legislation such as the new Impact Assessment Act. I know that you've responded to the question of veto and that you've responded to some of those matters to my colleague. Do you agree with this statement by Minister Lametti? Does the implementation of Bill C-15 change the government's decision-making ability in the context of projects?

[National Chief Perry Bellegarde]

I'll make some quick comments, and I'll ask my lawyer friends, as well, to make some comments.

Thank you for the question, Mr. Vidal. Good morning to you. I was going to make my comments earlier on, as well, to Mr. Schmale's question about it. The federal government has jurisdiction, and provincial governments have jurisdiction, but don't forget first nations governments as well. They also have certain jurisdiction. It should be a joint decision-making process with our full involvement. That's what has to happen going forward.

We've always been excluded, and that's the issue and concern: that things need to be addressed going forward. Unilateral decisions cannot be made. There has to be a co-operative, collaborative working-together approach, and rights and title holders have to be involved going forward. That's my quick comment on that: don't forget the other jurisdiction as well.

Mary Ellen, maybe you can comment from the legal perspective.

[Dr. Mary Ellen Turpel-Lafond]

Yes, I can. I don't know the exact context in which the Attorney General made the comments, but I can certainly say that consent is part of the law of Canada now. In terms of the government's obligation to create a proper framework for consultation, engagement and consent, that has been determined by the Supreme Court of Canada on multiple occasions.

It's important, again, to emphasize that consent and veto are not the same thing. Consent is not a veto over resource development. No rights, of course, are absolute, and government has government powers. We're acutely aware of that. One of the issues with this bill is to operationalize that concept very early so that first nations, as governments, are engaged with the proper rights holders early in processes where there are developments and that indigenous people are not excluded from development.

In fact, if we look at some provinces like British Columbia, I think the highest number of new mining permits have been given to companies working closely with first nations and where free, prior and informed consent of the nations have guided that work. I think the Attorney General's words about the existing framework.... I'm not sure what they are. I do know that Bill C-15 can add to and support that, but the legal framework is already—

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

Thank you. I'm sorry. I hate to be rude, but they give me such limited time and I want to get to another question. I appreciate that.

I have one follow-up question. I've had a lot of people reach out to me—people who are concerned about the opportunity to develop linear projects. Many of these are indigenous organizations that are looking to create prosperity for their communities and their members.

I get that you've clarified the difference between veto and consent, but on a linear project, in your opinion, who gets to give or withhold the consent? Granted, not everybody's always going to agree; I totally understand that.

[Dr. Mary Ellen Turpel-Lafond]

I'm certainly happy to respond to that because, as you well know, one of the issues that we're dealing with as we try to move away from this deeply colonial era of Canada's Indian Act, aided by the declaration, is that the rights of indigenous people and indigenous governments can.... The rights holders select the governments and they must be able to do that. We've been seeing that revitalization in British Columbia in particular, where hereditary leaders have been able to move forward and enter into agreements and so forth.

The question is, what government do they work with? It has to be the government supported by the indigenous people, not the government picked in the colonial way.

We are in a transition process. The challenge we have is if you have a proponent of a project and that proponent has engaged one or two indigenous people and says that this is appropriate license from indigenous people to go forward, you will have a problem. You must properly engage with the rights-holders and title-holders and their government. This is where much of the work of industry and government has fallen down. This declaration act and the shifts it will bring will bring greater clarity to that process.

Even just getting the support of an Indian Act band, for example, may not deal with all of the rights-holders and title-holders in an area where traditional territory is held by an indigenous people. The declaration act provides support here. The declaration itself provides a new framework that can help reduce some of that conflict and operationalize these principles better, both for business and for government.

[The Chair, Liberal, Bob Bratina]

Thank you very much.

Mr. Anandasangaree, you have five minutes, please.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, Mr. Chair.

I really want to thank the esteemed panel for being here. It feels like déjà vu. You were here a couple of years ago on this.

I'd like to ask Grand Chief Littlechild first about the importance of legislating UNDRIP. Many observers have indicated that UNDRIP is being interpreted in Canadian law already. Why is it important to legislate it within the framework of Bill C-15? Why is UNDRIP so important to the concept of reconciliation?

[National Chief Perry Bellegarde]

You're muted, Willy.

[Grand Chief Wilton Littlechild]

I'm sorry, I was saying again that this is for Treaty 6. I'm not speaking for them.

Now I've forgotten the question.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

I was asking about the importance of legislating UNDRIP and its contribution to reconciliation.

[Grand Chief Wilton Littlechild]

Yes. I was going to offer two examples of why we do this. The Jay Treaty is one example. The other treaty is in the Migratory Birds Convention Act. Those are international agreements. One, the Jay Treaty, only goes one way, because Canada did not pass legislation to ratify the Jay Treaty. It did ratify, in the case of the migratory birds convention, by way of legislation. We thus have a Migratory Birds Convention Act that allows indigenous peoples to hunt migratory birds under the treaty right to hunt.

The same thing happens here, with this legislation. For the UN declaration to be implemented, we need this legislation to do it.

Why is it important to reconciliation? That's the primary goal I have in working on this. There are at least nine [Technical difficulty—Editor] in the bill.

To go back to the very first question about free, prior and informed consent, that and the declaration are calls to action for us to work together.

It's for us to work together; that's why this declaration is important. That's why we as a commission set it out as the primary principle. It is a call on us to work together—to have better working relationships, for example. That's why it's important. It really is key to going forward together.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Thank you, sir.

I want to ask about the action plan. Maybe, Professor Turpel-Lafond, you could comment. I know you're in British Columbia.

The national chief is suggesting that the three-year action plan being contemplated here be reduced to two years. How realistic is it to have a review of laws within that time frame? Right now, as worded, it says that the action plan would be completed “as soon as practicable”. How realistic do you think it is to go to two years?

[The Chair, Liberal, Bob Bratina]

You have a minute. Go ahead.

[Dr. Mary Ellen Turpel-Lafond]

I think it's realistic and necessary. There's no reason why, within the Government of Canada, significant work can't be under way at this point to prepare for that action plan. We have multiple recommendations, of commissions and others, that identify the core areas of the action plan.

It is important because the rights of indigenous people are a priority, and if it's multiple years out, we will not be seeing progress. I think this is a modest proposal that the national chief has suggested: that it be moved from three years to two years.