Indigenous and Northern Affairs Committee on Nov. 25th, 2024

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

Yes, we agree with the overall principle of free, prior and informed consent. I agree that all of the UNDRIP legislation and the principles within it should apply in the guiding principles.

However, I'm asking you how a community.... There are more than 630 bands in Canada. How are we asking each of those to demonstrate free, prior and informed consent? What is the mechanism or thing they do to show it? It's not about whether we agree with the general principle. I agree with the general principle. I'm asking you how a first nations community shows free, prior and informed consent to satisfy this in the legislation. If we don't have an answer to that, we're going to add a layer of bureaucracy to this that makes it impossible for it to be implemented. I need a very specific instrument that a first nation can use to show free, prior and informed consent. We're in agreement with it, but I need to be clear on what a first nations community has to do to have this implemented in their community.

Is it a ratification? Is it a band council resolution? Is it a referendum? Is it an agreement? Is it a memorandum of understanding? I need to know the exact instrument. Otherwise, what we're doing to a first nations community is giving them no way to implement this.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Battiste.

I see that Mr. Vidal has his hand up. However, Ms. Idlout, if you'd like to weigh in on this point before that, I'd like to give you the opportunity.

[Lori Idlout, NDP, Nunavut, NU]

I want to weigh in.

I know the governing party has been clear that Bill C-61 is something they don't want to see actual engagement on among first nations. When they introduced this bill, they touted it as the first fully co-developed legislation. We were quite excited to hear about it. Throughout the whole study of this, we had such a huge amount of interest in this bill. We had so many first nations telling us that the consultations were not sufficient. Indeed, when I asked the federal bureaucrats to explain to us how much engagement there was, we learned only 31% of first nations would be impacted among those that were engaged in this.

When we're talking about adding free, prior and informed consent to this subamendment, we're talking about making Bill C-61 compliant with UNDRIP. Right now, as I've said before, Bill C-61 falls below UNDRIP standards. It's unacceptable that the Liberal government continues to introduce legislation, as it did in previous bills, that falls below UNDRIP standards.

How that happens is up to the first nations. How that happens should be up to the first nations to decide. The Liberal government keeps saying they don't want to be too prescriptive. When we've suggested amendments, they've said, “Oh, it's going to be too prescriptive.” Now that we've submitted another subamendment, they're asking me to give them a prescriptive answer. I don't think we should tell first nations how they are going to share their free, prior and informed consent. For example, we've heard in the past that there's going to be an UNDRIP action plan. I know there are other instruments. The United Nations Office of the High Commissioner for Human Rights has provided documents.

There are documents and instruments out there that will answer that question. It's not up to us to answer or prescribe that response.

Qujannamiik.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Ms. Idlout.

Next, we're going to Mr. Vidal.

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

Thank you, Chair.

I have a quick question and a quick comment.

I guess my comment back to Mr. Battiste, and maybe to the officials, would be, obviously, that the concept of free, prior and informed consent is very much an integral part of Bill C-15, our UNDRIP legislation. One of the witnesses here at this committee in September, Dr. Littlechild, referenced UNDRIP in his testimony.

My question for Mr. Fairbairn is in response to Mr. Battiste's question. In the context of the UNDRIP legislation, how do we acknowledge free, prior and informed consent? There has to be a definition there. It's legislation that has been passed. It's legislation we've adopted. How do we determine free, prior and informed consent, as it relates to UNDRIP, from a first nation, then? If the challenge is how we prescriptively define that, how do we do it for the UNDRIP legislation?

[Douglas Fairbairn, Senior Counsel, Legal Services, Department of Crown-Indigenous Relations and Northern Affairs and Department of Indigenous Services, Department of Justice]

There's no actual definition in the United Nations Declaration on the Rights of Indigenous Peoples Act on FPIC. Canada has an obligation to ensure its laws are in conformity with the United Nations Declaration on the Rights of Indigenous Peoples. There's also an obligation to develop an action plan, which was developed by the Department of Justice. It leaves the issue of FPIC to be decided at a future date.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Vidal.

I see Mr. Battiste has his hand up. We'll go there next.

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

I know, Gary, that you're subbing in. In previous discussions we had about how to show free, prior and informed consent when it was specific to a first nations band, we used the term “BCR” to demonstrate that. That's fine. There are others who will do things outside of a BCR.

I feel that, when we're talking about legislation, it's great to have these principles up in the air. However, as someone who lives in a first nations community and who knows what mechanisms are available under the Indian Act and what's currently there, I need to find language that all 630 first nations bands are able to understand, so they don't have to prove things individually, as bands, and by varying degrees throughout this process.

I was talking to my colleague Martin Shields. He said that, when he saw “consent”, he said “agreements”. At least, as someone who went to law school and who knows what contractual law is, I know what an agreement is. I know what a BCR is. What I do not know is what large-scale “free, prior and informed consent” mandate we're putting in this legislation, which might end up making its implementation impossible.

I'll ask the officials this: Is not having these terms introduced within communities going to delay or jeopardize the actual implementation of first nations clean water regulations on reserve?

[Nelson Barbosa]

Thanks for the question. I think my response would be similar to those about co-development.

I agree about FPIC being entrenched in law in other places. The lack of definition and clarity could seriously impact how the bill is actualized and implemented.

I'm not going to repeat myself, but, quickly, it sets a very high bar that is unclear, in my mind, on how that will be achieved. In the past, we have put, I would say, a quantifier or qualifier around what “consent” meant through a BCR, or it could be other actions. That would be a bit ambiguous in this context. I feel the ambiguity.... This section is about implementing something, and I wonder how it would be implemented.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Battiste.

Next, we'll go to Mrs. Atwin.

[Jenica Atwin, Liberal, Fredericton, NB]

Thanks.

It's very clear to me that what we require is legislation around FPIC. That would be very helpful in this circumstance. Then we could of course refer to it. It's very clear that we're missing a component we could address, I hope, at some point. However, right now, we're working on an act respecting water, source water, drinking water, waste water and related infrastructure on first nation lands, which is very specific.

We also enshrine the human right to water, which I think is very important. It lends itself to this conversation. What does that look like in actuality? We've yet to see that. It's a very nice piece that has been added to the bill. I wish we had that guiding principle or another piece of legislation with that definition, but we don't. That's my fear.

The task at hand is what we're looking at now. I want to go back to the consultation for the bill. I know you've gone over this many times, but it's a preoccupation for a lot of us. We have heard from individual voices across the country and in specific communities. At the top level, what does that look like? I also think it demonstrates some of the difficulties in what that definition should be. If we're posting something online, everyone can look at it. Is that consultation? Are we holding seminars or gatherings in communities? Is it sanctioned by all members of that community? Say you have 725 registered members and maybe some live in Hawaii, and some are....

I'm wondering about the mechanics. Without a separate piece of legislation that sets all of that out, what we're doing right now puts this bill—the one we are tasked to get through in this committee—at risk.

Could you talk about the consultation piece for me? Thanks.

[Nelson Barbosa]

I'd be happy to.

The department did submit a brief to the committee on the development process of this bill. I've had the pleasure of being at this committee several times and speaking about these actions, and I'm happy to briefly summarize them again.

In short, the consultation process on this bill was unprecedented in the history of Indigenous Services Canada. It really began in 2018, with engagements with first nations, which AFN led and we supported. Those were accelerated in 2020 with the posting of two consultation drafts online for all Canadians to review, which was a first time that's ever been done in the history of this department.

We sent—at least by my memory—three pieces of correspondence from the minister to every first nation to access and review the legislation. We opened up daily town halls in order for people to support engagement. We engaged directly with rights holders, based on their assemblies and based on their wishes, coming to their lands, from coast to coast.

Also, because some previous comments were attributed to comments I made at this committee previously, I did state that there are 634 first nations and about 580 of them are bands. Approximately 130 first nations chose to engage in that process. It does not mean that this consultation outreach was limited to that, but the window of opportunity was there, and we tried to socialize that as best we could. Maybe we learned some lessons in that process of how we can do better. However, I can absolutely say that the efforts we undertook were new. We can continue to do better. It was a lengthy process.

I would say, because the national chief was here as well, that AFN led a parallel engagement process, which was concurrent with and in addition to the aforementioned process that Indigenous Services Canada led with the minister. It was certainly comprehensive, and certainly there were a variety of views and interpretations of what consultation, co-development and consent meant.

Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mrs. Atwin.

We're moving next to Mr. Vidal and then to Ms. Gazan after that.

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

Thank you, Mr. Chair.

As Mr. Battiste aptly pointed out, it's been a while since I've been at the table with all of you. There just seems to be a bit of irony for me that I was here at this table when we had the debate around UNDRIP. It's almost like we're making opposite sides of the argument here.

Our concern back then was with looking for a clear definition of FPIC, and now the argument from the parliamentary secretaries is that we don't have that definition when it's included in the legislation, so maybe we need a definition of FPIC. However, it was two years ago. I think that was the argument we were making. We were totally supportive of the legislation, if we just understood what FPIC meant. Is that right? It seems kind of ironic now, when we try to include that in a specific piece of legislation, that it's a hindrance to the progress.

Maybe I'll turn to the officials. What would you see as a way forward to getting a definition of FPIC that would apply to UNDRIP and would apply, then, when this is now inserted into other legislation? Maybe that's the impetus that is needed here to solve this impasse.

It's kind of ironic that my Liberal friends are arguing exactly what I was arguing a couple of years ago in the context of needing clarity on this definition. Without that, we struggled because of the impact it might have on decisions down the road. Well, here we are.

I'm sorry. That's all I have. Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Vidal.

Next, we'll go to Ms. Gazan.

[Leah Gazan, NDP, Winnipeg Centre, MB]

I know we're all talking about a definition of FPIC. I have one from Justice, so I'm going to read it. It comes directly from the federal government's justice department.

It says the following:

References to “free, prior and informed consent” (FPIC) are found throughout the Declaration. They emphasize the importance of recognizing and upholding the rights of Indigenous peoples and ensuring that there is effective and meaningful participation of Indigenous peoples in decisions that affect them, their communities and territories.

I want to say this is coming directly from the justice department:

More specifically, FPIC describes processes that are free from manipulation or coercion, informed by adequate and timely information, and occur sufficiently prior to a decision so that Indigenous rights and interests can be incorporated or addressed effectively as part of the decision making process—all as part of meaningfully aiming to secure the consent of affected Indigenous peoples.

We actually have a definition, currently. I'm reading it right off the Justice page. It continues:

FPIC is about working together in partnership and respect. In many ways, it reflects the ideals behind the relationship with Indigenous peoples, by striving to achieve consensus as parties work together in good faith on decisions that impact Indigenous rights and interests. Despite what some have suggested, it is not about having a veto over government decision-making.

FPIC is not a veto. It's all laid out by the justice department. It has a very clear definition of FPIC.

I want to add that we passed Bill C-15 in the last Parliament. Section 5 stipulates that all legislation, going forward, has to be compatible and consistent with the United Nations Declaration on the Rights of Indigenous Peoples. The reason this legislation is taking so long is that the Liberal government has failed to do that. Now we are in a situation where only 30% of first nations have been consulted, meaning you have not met the FPIC standards outlined by your justice department, which the federal government must adhere to. Now we're here. We have the definition. I'm not sure what the issue is in terms of incorporating FPIC, when the justice department has defined it.

The other thing I'd like to point to is the UN expert instrument that clearly outlines UNDRIP. We are obliged to uphold international law.

I can read it:

Free, prior and informed consent is a manifestation of indigenous peoples' right to self-determine their political, social, economic and cultural priorities. It constitutes three interrelated and cumulative rights of indigenous peoples....

It goes on. It has a very clear definition, and it's consistent with the definition outlined by the federal justice department.

I'm sharing this because, even with the child care legislation, the Liberals pushed very hard not to include free, prior and informed consent on matters impacting our children. There seems to be a pattern of behaviour when it comes to the United Nations Declaration on the Rights of Indigenous Peoples, the very core of which is free, prior and informed consent and self-determination. The Liberals continually disrespect this. Now, I managed to work with the Conservatives on the child care legislation, and we got FPIC passed in that.

Using the excuse that we don't know what FPIC is is not accurate or honest. We have a definition at the federal justice department. It goes on. We can read it.

Thank you.

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Ms. Gazan.

Next, we're going to Mr. Battiste.

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

Once again, I'll ask the NDP.

I understand all of that about FPIC. I'm in favour of it. I'm in favour of UNDRIP. My father was one of the original drafters of the United Nations Declaration on the Rights of Indigenous Peoples. I'm asking you this: How does a first nations community demonstrate that, in reality?

I need the answer. What are you making a community do? There are 630 out there. I live on a reserve. Please tell me the instrument you're telling the community to do that with. What's the instrument a community uses to demonstrate that? In plain talk, what does your band have to do?

[The Chair, Liberal, Patrick Weiler]

Thank you very much, Mr. Battiste.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Am I supposed to answer?

[The Chair, Liberal, Patrick Weiler]

I'm not going to put you on the spot. If you'd like to, I'm happy to pass the floor to you.

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

If you don't know, you don't know.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Oh, I do know.

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

Well then...?

[The Chair, Liberal, Patrick Weiler]

Ms. Gazan, if you'd like, I'll pass the floor to you.