Indigenous and Northern Affairs Committee on April 20th, 2021

[Laurie Sargent]

I will perhaps start with the B.C. example, which, as you say, is the one most familiar to us.

Again, the legislation in relation to the UN declaration does not define free, prior and informed consent. The approach taken was very much to articulate during legislative procedure as to what the government's understanding of that concept was, and the importance, of course, of aligning, in that case B.C.'s laws, with free, prior and informed consent as a guidepost and something that will be implemented in a number of different contexts—Minister Bennett spoke to that as well—across social and economic resources and so on.

In terms of other countries' experience, as I understand it, there are not many other countries that have specifically legislated the UN declaration's implementation, but there are several in Latin America—I believe Colombia and elsewhere—that have looked to the declaration to inform their own constitutions. Of course, each country is unique and will take a different approach. Article 38 of the declaration really speaks to that: that it's for each country to take its own approach in implementing the declaration in a manner that reflects its traditions, its indigenous peoples, its Constitution and its laws.

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

Do you know if there have been any cases in British Columbia so far, since they enacted their law related to indigenous and aboriginal rights? Have there been any attempts by British Columbia courts to interpret that provision?

[Laurie Sargent]

I will ask my colleagues from Justice, who are on the line. They might want to provide a further response to this.

My understanding is that since that legislation is quite recent, there are not many cases where it has been used as a basis for decision yet. I'm sure it has been invoked in a couple of cases.

I'll ask my colleague Koren Marriott if there's anything she'd like to add to that response.

[Koren Marriott, Senior Counsel, Aboriginal Law Centre, Aboriginal Affairs Portfolio, Department of Justice]

Thanks, Laurie.

We know it has been raised in a few cases, together with other arguments about the declaration, but I'm not aware of any decisions yet where the court has addressed the bill directly.

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

Let me totally change tack.

Our government adopted the principles of UNDRIP back in 2015. My understanding is that the government has been working on implementing those principles since 2015.

Can you tell us what the government has been doing to implement the principles of UNDRIP since 2015?

[Laurie Sargent]

I will be pleased to provide an initial response and then see if my colleague Ross Pattee from Crown-Indigenous Relations might wish to add, because it really has been a whole-of-government effort to implement and reflect the principles of the UN declaration across the federal system.

Minister Bennett mentioned that there are already many laws that reflect the declaration itself in their language, their preambles or their purpose clauses. We have Bill C-92, the act respecting first nations, Inuit and Métis children, youth and families; the Indigenous Languages Act passed in the previous session; and the preamble to Bill C-69, the impact assessment legislation. There are many examples in legislation itself.

Then, of course, the declaration has been informing a lot of the work that Crown-Indigenous Relations is doing in a number of different areas, including in the recognition of rights tables and the negotiations there.

With the chair's permission, I could ask if Ross might also wish to add anything.

[The Chair, Liberal, Bob Bratina]

Unfortunately it would have to be done in five seconds. Maybe it will come up again, but thank you.

The floor is yours, Mrs. Gill.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you, Mr. Chair.

I would like to go deeper into the issue of possible federal government interference in areas of jurisdiction that belong to Quebec and to the provinces.

Of course, Minister Bennett clearly dismissed that possibility out of hand. However, communication with the public is often necessary in order to clarify matters and make sure that people are not living in anxiety. I would therefore like to know how and when, or actually whether, the government has collaborated to properly communicate the points in Bill C-15, including their effect in Quebec and in the provinces?

[Laurie Sargent]

Yes, a number of discussions have taken place with the provinces and territories, including two with provincial and territorial deputy ministers and the federal government in attendance. There were also two ministerial meetings, during which provincial and territorial officials were able to ask questions and make known any concerns about Bill C-15.

I will complete Minister Bennett's response by drawing your attention to a passage from the preamble of Bill C-15, which mentions the role of the provinces and territories, and in which the Government of Canada acknowledges:

that provincial, territorial and municipal governments each have the ability to establish their own approaches to contributing to the implementation of the Declaration by taking various measures that fall within their authority.

That passage reflects really well the bill's recognition of shared jurisdictions in Canada.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you Ms. Sargent.

The Minister did not have the time to talk about section 35 and section 15. As I pointed out, those who are not in favour of Bill C-15 will tell us that it adds nothing to section 35 and they want none of it.

What would you say to those people?

[Laurie Sargent]

Perhaps we have to take a little step back. We have to understand that, as the purpose of the act states, the objective is to provide a framework for implementing the declaration. The federal government has committed to work in partnership with Indigenous peoples to make sure that the declaration is implemented in every aspect of federal law and federal policies.

However, some points, including free, prior and informed consent, will require much more discussion. The bill requires Parliament to do that. In addition, as the principles governing the relationship of the Government of Canada with Indigenous peoples already emphasizes, free, prior and informed consent not only requires the legal obligation to consult but also goes beyond that obligation. In fact, it is an invitation to find creative and constructive ways to work in conjunction with Indigenous people in all areas where the principle applies

[Marilène Gill, Bloc, Manicouagan, QC]

I have mentioned four or five issues that have raised fears. To conclude, can you tell us about the fears that people might have about the bill, whether they are from Indigenous peoples or from the non-native population?

[Laurie Sargent]

As I mentioned previously, the legislation applies a framework. It also involves a commitment from the federal government to continue its discussions and to develop an action plan.

An important conversation on matters such as free, prior and informed consent will have to take place, including how, specifically, it is applied in a number of contexts.

There must also be an emphasis on the fight against discrimination and racism, and on the importance of all the work that will have to be done collaboratively.

[The Chair, Liberal, Bob Bratina]

Thank you.

Ms. Gazan, you have six minutes.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Thank you so much, Chair.

I guess I'll ask this of Madam Sargent.

Concerns have been raised about the lack of consultation with individual indigenous rights holders. Moving forward, certainly in the action plan, how does your department plan to consult with indigenous people and peoples on the ground?

[Laurie Sargent]

It is certainly something we are mindful of and reflecting on in light of the experience leading up to the introduction of Bill C-15. We recognized that the legislation had undergone a great deal of engagement already and that there was some urgency to bringing it forward. Therefore, the engagement process was shorter than many would have liked.

That said, moving forward, with respect to the action plan, we are absolutely wanting to engage more broadly. On that, I'd be pleased to turn it over to my colleague, Ross Pattee, who's also thinking about this through the lens of the work that Crown-Indigenous Relations does in engaging with indigenous peoples. We see it as a joint project going forward.

With the permission of the chair, I'd like to pass the question over to Ross for some further response.

[Ross Pattee, Assistant Deputy Minister, Implementation Sector, Department of Crown-Indigenous Relations and Northern Affairs]

Of course, we are already engaged right now in moving forward. As you heard from the minister, the budget yesterday allotted over $31 million for consultation and engagement with a variety of people who have an interest in this legislation as it moves forward.

Our plan is quite comprehensive and extensive, and it will involve all indigenous partners, rights holders, industry and individual indigenous rights. It's going to be very important that we complete that process so that we come up with the best action plan possible.

[Leah Gazan, NDP, Winnipeg Centre, MB]

You mentioned the $31 million. Have any decisions been made about how that funding will be allocated? Who's going to control that allocation of funding for consultations?

[Ross Pattee]

I only learned that it was approved and put forward at about 4:30 yesterday, so the answer to your question is that no decisions have been made yet.

What I can tell you, based on my previous answer, is that it's going to be important that we use that money effectively to ensure that everyone's voice is heard and that we all work together on a collaborative action plan as we move forward.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Thank you so much.

I have another question. There have been questions raised about the three-year duration for the development of the action plan. I wonder why your department decided that the three-year time frame was necessary to develop an action plan when we've been, as we've heard around the committee table, discussing the rights enshrined in the declaration for the last three decades. Why did you feel it was necessary to have those three years?

[Ross Pattee]

I'll take that answer also.

I want to remind folks that it says that the plan needs to be developed within three years, so it's up to three years. I also understand that there's a proposal to potentially look at shortening that time frame.

The reason we put the possibility of that time frame in is that we need to work in consultation. This needs to be a consultative engagement plan. That's going to take some time to do, and it's going to take some time to do effectively.

If we're given two years to do that, we will do it in two years for sure, but I want to just reiterate that it's about making sure we get the right voices heard to get the plan as strong and as effective as possible.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Thank you very much.

My next question is one that is raised at every committee meeting. I know the minister responded to this question, but I'd like to hear the thoughts of the witnesses currently on the panel.

Could you clarify your government's understanding of the difference between veto and FPIC?

A response from either witness is fine.

[Laurie Sargent]

I can take that, and I might ask my colleague Sandra Leduc, who is also working on this file, to supplement.

From the government's perspective, I think what the focus is really on is free, prior and informed consent as a positive expression of the need for us to work in partnership and collaboration with indigenous peoples in all aspects of work that might impact on their rights and interests. The focus is very much on this more positive aspect of it, and less on this idea of veto, which of course finds no expression.

It's not found in the declaration itself. It is a way of articulating a lot of fears about what “free, prior and informed consent” means, but it is not grounded in the understanding of the declaration or the concept as we understand it.

Perhaps I'll ask if Sandra would like to add anything to that response.

[The Chair, Liberal, Bob Bratina]

Please respond very quickly.

[Sandra Leduc, Director and General Counsel, Aboriginal Law Centre, Aboriginal Affairs Portfolio, Department of Justice]

Thanks so much, Laurie.

Very quickly, FPIC implies context. You need to take context into consideration, whereas when you're talking about veto, you're not talking about the position or the facts; it's devoid of that context. That is why FPIC is very different and needs to be looked at each and every time, based on the context.