Indigenous and Northern Affairs Committee on May 10th, 2023

[The Chair, Liberal, Jenica Atwin]

Thank you, Mr. Vidal.

We now move to Mr. McLeod for six minutes.

[Michael McLeod, Liberal, Northwest Territories, NT]

Thank you, Madam Chair.

It's our first day of the study, and I think it's certainly going to be an interesting one. I want to welcome our presenters today.

I want to ask my first question to Dahti Tsetso, from the Northwest Territories—

[The Chair, Liberal, Jenica Atwin]

There's a point of order.

[Sylvie Bérubé, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

The sound quality is poor.

[The Chair, Liberal, Jenica Atwin]

Mr. McLeod, we're just worried about the sound quality. You're kind of cutting in and out a little bit.

[Michael McLeod, Liberal, Northwest Territories, NT]

I'm wearing the headset. Just hang on....

[The Chair, Liberal, Jenica Atwin]

It seems to be better, if you want to proceed, we'll see how it goes.

[Michael McLeod, Liberal, Northwest Territories, NT]

We'll try again.

I'll start by thanking the presenters.

My question is to Dahti Tsetso regarding the initiative she's involved with. She's from the Northwest Territories where I'm from also, and we have 15 negotiating tables going on right now. They're all focused on protecting a way of life for indigenous people.

Many indigenous governments have voiced concerns over land tenure or land quantum being offered by the government, whether the process is territorial or federal. The end result is going to be a small percentage that is offered through the comprehensive claims process, and indigenous governments are claiming that they'd be forced to develop them because there's no other mechanism to pay for their governance system once they're a self-governing nation.

In 100 years or so, or less, there would really be nothing left of a nation. There's no ability to reconstitute a nation if there's no land.

I'm really excited to hear about Dahti Tsetso and the initiative that she's working on. That kind of thing is outside of the box. I wanted to ask her if she could explain a little bit—

[Sylvie Bérubé, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Madam Chair, a point of order.

There is no interpretation.

[The Clerk]

Madam Chair, the interpreters cannot continue because Mr. McLeod has a poor connection.

[The Chair, Liberal, Jenica Atwin]

Okay.

We will go to Patrick Weiler for the Liberal Party. We'll give you five minutes to recoup the time.

Mr. McLeod, we'll have to come back to you.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you, Madam Chair.

I want to thank the witnesses for joining us today.

I'm actually an alumni of UBC law school, but unfortunately, Dr. McIvor, I wasn't able to take your class when I graduated over a decade ago.

You mentioned some very interesting things in your opening that I want to bring up, particularly around questions about the rule of law and the need to unpack that.

I think one of the really challenging things we need to discuss as part of the study is that there are very different perspectives on what land ownership means. For many indigenous cultures, land is owned collectively. Obviously, for European countries and western countries, it's owned individually.

I was hoping you could maybe expand on how that complicates some of the discussions that we're going to have as part of the study. What are some of the ways forward we can have on that, particularly when we're thinking about things like legal pluralism?

[Dr. Bruce McIvor]

Thanks very much for the question. I have a couple of points on this.

One issue we have all the time in the development of aboriginal law in Canada is that the courts have said there needs to be translation. The indigenous concepts of land, property holding and how you do things need to be translated into something cognizable—for a lawyer's term—in the common law. Until it is, it can't be recognized and implemented.

When we're talking about legal pluralism, that is a fundamental problem. It's a fundamental problem that these things don't have legitimacy unless they're understandable in the Canadian common law context.

It makes me think of Edward Said's famous book on orientalism and the “other”. The way the courts have worked around this is that they've looked at indigenous people and they've tried to translate them into something that non-indigenous people would understand and that fits. If we're going to move to better ways of recognizing indigenous rights, we need to accept that this is a problem. It can't be all through the eyes of the colonizers.

We need to start there and find a way forward that truly respects the fact that indigenous people on the land had, before colonizing nations showed up with their own laws, not just their own cultures and languages but their own laws over the land. Those laws themselves need to be respected.

I hope that goes to your question.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Certainly.

When I articled, practising in aboriginal law, one of the cases that had just had a judgment was the Tŝilhqot’in case.

I was hoping you could expand, please, on how that's become a shift in the way forward on settlement agreements and treaty settlements. Really, with the change in outcomes that are available in a very real way for nations, how might we be able to approach that to really move forward in the discussion we've having today?

[Dr. Bruce McIvor]

There's a lot to unpack there, and a lot of possibilities.

Around the 2014 Tŝilhqot’in decision, it was very important, because we finally had a court make a declaration: Yes, these are aboriginal title lands. That was an incredibly important step forward, but at the same time, where do you end up? Where are the Tŝilhqot’in now? They're negotiating. They're negotiating what that means. They're negotiating with the provincial and federal governments. They've been doing that for years.

One of the points I was making was that we shouldn't force indigenous people into the court in a similar situation. I don't think that upholds the honour of the Crown. I don't think that's the best use of time and resources. Do you really want to ensure that there's even more money paid to lawyers to do that kind of work? You don't need to fight that out in court. I think the federal government has a responsibility to step up and find a similar type of solution without putting every indigenous nation through what the Tŝilhqot’in had to go through.

The second issue there is the role of the provincial governments. The law changed around that in 2014. I think it's really important to keep in mind that under the Canadian Constitution, of course, the provincial governments in the provinces say that it's their land, that it's their Crown land. I'll have provincial governments and the federal government come to the table with my clients and say, “We're here to discuss your land claim.” When they do that, I stop and say—in a respectful way, I hope—“My clients don't have a land claim. You're claiming their land. Understand that fundamental point, and then we can have a real conversation.” That's who has the land claim—the provincial and federal governments.

We don't have to put everyone through the Tŝilhqot’in grinder. I think there's a better way forward on recognizing whose land it is and finding a way forward, not substituting rights, which is what the comprehensive claim policy does. Instead of substitution, how can we implement those rights?

[The Chair, Liberal, Jenica Atwin]

Thank you, Mr. Weiler.

Ms. Bérubé, you have the floor for six minutes.

[Sylvie Bérubé, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Thank you, Madam Chair.

I would like to thank the witnesses once again for their testimony and for the valuable information they provided earlier.

In our committee's studies, indigenous rights often come up. Regardless of the topic the committee is considering, our witnesses invariably talk about those rights. I would like to ask Mr. McIvor...

Is everything okay? Can you hear me?

[The Clerk]

Madam Chair, I'm not sure what's happening. It seems the interpretation has stopped.

[The Chair, Liberal, Jenica Atwin]

Okay.

We'll briefly suspend.

[The Chair, Liberal, Jenica Atwin]

We are back now.

Please continue, Ms. Bérubé. You may repeat your question if you wish.

[Sylvie Bérubé, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

To begin, I would like to thank you for being here today because the information you have provided is very important. Indigenous rights are often discussed at our committee's meetings. Regardless of the topic of study, the witnesses almost invariably talk about those rights.

I would like to ask you, Mr. McIvor and Ms. Tsetso, to give us a picture of the situation. You did so earlier, Mr. McIvor, but could you summarize the history of indigenous rights and describe the current use?

What is happening with indigenous rights and what role do they play in land restitution at the Indigenous Advisory Committee?

[Dr. Bruce McIvor]

Thanks. I'm sorry for the malfunctioning there. My mom would be embarrassed. She's from an old French family that spoke French for 350 years, and I'm the first one who can't.

On this point, I think it's really important to have in mind the difference between indigenous rights and aboriginal rights.

Indigenous rights are the rights of indigenous people that they had before colonizing nations appeared on their land. They're based through their own laws. Aboriginal rights—aboriginal title being one of those—that's the construction of Canadian courts. Canadian courts have created this body of aboriginal rights under the Canadian Constitution, under section 35.

Not far from here I was walking and there's a statue of what's supposed to be an indigenous man shooting a bow and arrow at a deer, you've probably seen it. From my perspective the way the aboriginal rights have developed, it's often along those lines that Canadian courts have looked at indigenous people and have tried to figure out what's essential about them as a distinctive culture: Let's preserve that, their aboriginality, and then we'll protect that under section 35 of the Constitution.

I think there's a fundamental problem with that because it comes back to translating who indigenous people are and their rights into a form that is recognizable. We often talk about section 35 of the Constitution being an empty box. This was a concern when the Constitution was repatriated in 1982. The courts interpreted it as an empty box, and with serious concerns, but then they've been filling the box with what the Canadian courts—and most of them are non-indigenous people—have determined is what makes you essentially an indigenous person. I think that's a fundamental problem with this.

When I speak to my clients about this, we always talk about how there's a difference between indigenous rights and aboriginal rights. Aboriginal rights are constructs under Canadian law. There are a lot of problems with it. Indigenous rights are specific to indigenous nations. There's not one set of indigenous rights. There are Mi'kmaq rights, Tŝilhqot’in rights, Secwépemc rights, Anishinabe rights—all the wonderful range of indigenous peoples across the country. I think going forward it's important for us all to keep being aware of those differences.

[Sylvie Bérubé, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Ms. Tsetso, what are your thoughts?

[Dahti Tsetso]

Where I'm from our elders talk about how we've been on our land since time immemorial, so it's from before memory. It's from that relationship to our land that those rights then follow. As Mr. McIvor stated, those existed well before anyone from any other land came to this land.

Before Canada existed, our peoples all had ways of governing ourselves, but also ways of interacting with other nations. There were times of conflict, times of war, and just like any other nation in the world, those helped shape the peoples that we became.

Our rights, in the words of our elders, is that we are of this land and this land is of us, and it's from that time immemorial linkage that these rights then therefore flow. I would have to concur that there's a fundamental difference in understanding between indigenous nations and our understanding of our rights, and the Canadian government's understanding of our rights. I think that's a very important consideration in the study that you're undertaking as federal representatives.

[The Chair, Liberal, Jenica Atwin]

Thank you, Ms. Bérubé.

Ms. Idlout, you have six minutes.