Indigenous and Northern Affairs Committee on April 20th, 2021

[The Chair, Liberal, Bob Bratina]

Thanks, Minister.

We're going to take Ms. Gill and Ms. Gazan, for two and a half minutes each, and then conclude.

Mrs. Gill, you have the floor.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you, Mr. Chair.

Thank you for being so kind as to stay with us, Madam Minister.

I would like to finish my previous question about free, prior and informed consent, or FPIC. You said that this concept could appear in the act without a corresponding definition.

So I am asking you for two explanations. Why could the concept not be defined in the act? Second, how can we allay the fears that FPIC could become a right of veto?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

Thank you for your question.

I feel that we have a clear consensus that it is not a veto. As FPIC is explained in the declaration, it is not necessary to explain it again in the bill.

It's difficult to reach a consensus with our partners at the moment. It is very difficult for us to insist that a definition be accepted without a consensus from the Indigenous peoples.

[Marilène Gill, Bloc, Manicouagan, QC]

I have a question for you on another issue that was brought up in a range of testimony, the issue of women.

Did the bill get a GBA+, a gender-based analysis plus?

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

It certainly did, and I think it's possible to provide that analysis.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you very much.

As some women's groups want that question to be included in the preamble, it would be helpful for our work if you could send that analysis to the committee.

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

Yes. In addition, the commitment of young indigenous lawyers, and the inclusion of two-spirited people and indigenous diversity, represent an advance in concepts of gender, in my opinion.

[The Chair, Liberal, Bob Bratina]

I'm sorry to interrupt.

We have Ms. Gazan for two and a half minutes.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Thank you, Mr. Chair.

Going back to amendments that have been recommended to our committee through testimony and written submissions, I am asking if your government is willing to make the following amendments.

The first is deleting paragraph 6 of the preamble.

The second is adding a subclause 2(4): “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.”

The third is adding a subclause 2(5): “For greater certainty, nothing in this Act is to be construed so as to diminish or extinguish the rights of Indigenous peoples, including treaty rights.”

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

Thank you for the hard work on the possible amendments.

Obviously, everything is being considered, but I think we will want to make sure that, again, with our partners and what was in the consultation document, we will need to make our best efforts in achieving a consensus.

[Leah Gazan, NDP, Winnipeg Centre, MB]

I ask that because I know particularly the latter two amendments I proposed speak to the importance of recognizing and respecting the living tree doctrine, an amendment that was put forward by former member of Parliament Romeo Saganash, as well as the Assembly of First Nations. It's important that this government respect those amendments, and I'm hoping that we see those amendments as we go through clause-by-clause of the bill.

[Carolyn Bennett, Liberal, Toronto—St. Paul's, ON]

I would just say that as we go to work on the action plan—and as you know, the action plan's already begun its work, and places like Yukon are already going to work on this—that evergreening of the bill is going to be really important in terms of the living tree, the living document, as it goes forward. Whether it's in the bill or whether it's part of the action plan, those are the deliberations that Minister Lametti is doing now.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Thank you very much.

[The Chair, Liberal, Bob Bratina]

Thanks, Ms. Gazan.

Minister Bennett, thanks for delaying your other appearance for us.

We'll suspend very momentarily and retain all of our witnesses, as well as adding two more. The committee is suspended.

Once again, thank you to the minister.

[The Chair, Liberal, Bob Bratina]

I call this meeting back to order.

Once again, we have the department officials ready to answer the questions, as introduced earlier.

Let us go now to the first round of questions. I have to find my right order. We're at Mr. Viersen.

Mr. Viersen, please go ahead for six minutes.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Thank you, Mr. Chair.

I want to thank the witnesses for being here today as well.

To the justice department folks, I'm trying to figure out paragraph 4(a), where it says that UNDRIP would have “application in Canadian law”. Are there any other UN declarations...? I'm thinking of the UN Declaration on the Rights of the Child or the Palermo protocol, or any of these other instruments that I use from time to time. Are there any others where it's explicitly stated that they have application in Canadian law? Many of them we use to determine and draft our laws here in Canada. I've done a Google search and I can't find any, but is there any other instance where we've legislated a UN declaration with application in Canadian law?

Ms. Sargent.

[Laurie Sargent, Assistant Deputy Minister, Aboriginal Affairs Portfolio, Department of Justice]

Yes, good morning.

The wording that is found in this bill is unique relative to others. That said, there are examples. I think of the Immigration and Refugee Protection Act, which speaks to the role of international human rights instruments in interpreting that law, so there are some examples. The way the government reads paragraph 4(a) is really a reflection of the state of the law as the courts have told us it exists, which is that declarations such as the United Nations Declaration on the Rights of Indigenous Peoples can be used to inform the interpretation of legislation and of the Constitution, and therefore have application in Canadian law.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

That doesn't change anything then. When you're saying that 4(a) doesn't change the workings on the ground, whether the Palermo protocol or the rights of the child also have application in Canadian law, you can come to court with that as a document and say, hey, this child's rights are being violated because of the UN declaration. Is that the case?

[Laurie Sargent]

The way you've explained it is appropriate in the sense that claimants can bring international instruments before courts already and explain how they relate to either their legal arguments under the charter or under other legislation, and this provision really is a recognition of that same point. All that said, there is value to recognizing the role this declaration can play, given its importance and the recognition that it has in international fora and by indigenous peoples as well as governments in relation to interpreting and applying Canadian law.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Given that paragraph 4(a) is kind of unique and it's the first time we're using it, will articles of UNDRIP be actionable in Canadian courts?

[Laurie Sargent]

That is something we already see. In other words, indigenous claimants are invoking the declaration when they view it as a helpful supplement to their arguments under Canadian law.

We wouldn't see this provision necessarily changing or having a significant impact in that regard, but it does, of course, make it clear that the federal government needs to be mindful of the declaration when it approaches its own interpretations of federal legislation and the Constitution, among others.

It really signals, I think, the importance that the government places on the declaration as a source of interpretation for legislation in Canada.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

With the trafficking in persons laws that we have brought in this country, we have used the Palermo protocol. Would you say the Palermo protocol has the same actionable character in Canadian law as UNDRIP at this point, or does paragraph 4(a) change that?

[Laurie Sargent]

I'm not an expert in the Palermo protocol and exactly how it may be used in that context, but generally speaking, the federal government, when it moves to implement international treaties in Canadian law, can take a number of different approaches. In this case, what we see is the government really taking—when I say the government, I also reflect Bill C-262 and the approach that it took—an approach of recognizing the role of the declaration as an interpretive instrument relevant to interpreting our laws.

I think we heard other witnesses before the committee say this as well. It's not an attempt to take the declaration and make it a federal law, which is sometimes the way international instruments are integrated into Canadian law. That's not the case here.

[The Chair, Liberal, Bob Bratina]

That's just about our time. Thanks, Arnold.

Mr. Powlowski, you have six minutes.

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

We have heard numerous times the assertion that this would create uncertainty. What is the meaning of free, prior and informed consent?

I understand that we're not the first jurisdiction to implement UNDRIP or to attempt in some way to incorporate the provisions of UNDRIP in our domestic law.

Can you tell us what other jurisdictions' experiences have been with respect to implementing UNDRIP and how they have interpreted free, prior and informed consent? I guess that includes British Columbia, if you're unaware as to what other jurisdictions have done internationally.