Evidence of meeting #87 for Indigenous and Northern Affairs in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendments.
A video is available from Parliament.
Liberal
Liberal
The Chair Liberal John Aldag
I'm sorry; I'm just getting a technical clarification on something before I go to you, Lori. Just wait one second.
Lori, do you want to be on the list? I have Mr. McLeod, then Mr. Viersen, and then you on the list.
Let's go to Mr. McLeod.
Liberal
Michael McLeod Liberal Northwest Territories, NT
Thank you, Mr. Chair.
I think Lori was raising a concern or a question along the same lines as I am.
As indigenous people—as first nations and the Métis, and the government that I belong to—we tend to think as a collective versus as individuals. We've lived our lives that way. Our culture is based on that. I'm really nervous about what it means when we start moving away from the collective approach and start talking about Métis individuals versus what the agreement is about. I just about need a lawyer sitting beside me here to interpret what is being discussed. I would have to ask what that means, and how much of a change that would be.
Liberal
The Chair Liberal John Aldag
If you are posing a question, please pose the question to our officials.
If someone wants to respond to the member's question, or if you need it reframed, I can get it—
Legal Counsel, Department of Justice
I'll take my cue.
The right to self-determination and the inherent right of self-government are rights that are normally described as collective rights, so to make reference to individuals in the context of rights that are collective rights would be a bit unusual. It would make more sense to refer to a collective when talking about collective rights, which self-determination and self-government are.
Conservative
Arnold Viersen Conservative Peace River—Westlock, AB
Thank you, Mr. Chair.
Around, say, for example, harvesting rights, currently Métis have harvesting rights as individuals, I assume. How is that organized at this point? Could you explain that to me?
Legal Counsel, Department of Justice
Without getting too far into discussion on aboriginal rights today, there are rights that are held collectively and can be exercised by individuals. Something like rights related to self-government, such as elections, are collectively held rights. They go to the right of a community to organize themselves, but obviously some component of that has an individual exercise—an individual citizen voting for the leader of their collective, their government, for example. Harvesting rights would be one example of that: a collectively held right that can be exercised by an individual. It depends on the context.
Conservative
Arnold Viersen Conservative Peace River—Westlock, AB
Currently, Mr. McLeod is exercising his harvesting rights. If he hypothetically chooses not to join MNA in Alberta, would he continue to be able to exercise those rights without being a member of the MNA?
Legal Counsel, Department of Justice
This is something that's sort of outside the scope of the treaties we're discussing right now. Harvesting isn't before us, so a jurisdiction like that would.... It would depend on the terms of the treaty how that right might be exercised.
Conservative
Arnold Viersen Conservative Peace River—Westlock, AB
I guess so, but the challenge we're going to run into is that after this bill passes, we will have defined Métis governance, in which Métis identification is then going to come through those governments. If folks identify as Métis but choose not to join the MNA, will they continue to have...? I don't quite understand how the harvesting rights are currently organized. Would they continue to have harvesting rights if they choose not to join the MNA? Does that make sense?
Federal Negotiations Manager, Negotiations - Central, Treaties and Aboriginal Government, Department of Crown-Indigenous Relations and Northern Affairs
The first part of your question, Mr. Viersen, seemed to suggest that this bill was establishing something other than what it establishes. What it recognizes is that the MNA, the MNO and the MN-S are indigenous governments that have been mandated to advance the collective section 35 rights of their collectivities.
It provides a legislative framework in which to give legal force and effect to future treaties that will cover their right to govern themselves and organize themselves internally. It does not establish parameters for Métis identity in the way that I understood the beginning of your question to suggest.
I agree with Ms. Redmond that we're not here today to speak as experts on Métis harvesting regimes. This bill doesn't touch on that.
Conservative
Arnold Viersen Conservative Peace River—Westlock, AB
That's what my amendment is trying to get at. Nothing in this.... That's what we're trying to clarify around this. On the individual rights to harvest, for example, that won't be derogated by this bill. That's specifically what this amendment is trying to get to. That's why we've moved it to “individuals” rather than “peoples”.
December 5th, 2023 / 5:10 p.m.
Federal Negotiations Manager, Negotiations - Central, Treaties and Aboriginal Government, Department of Crown-Indigenous Relations and Northern Affairs
I understand the Powley decision to say that the rights that individuals exercise are derived from the historic collectivity that they were a part of as Métis people prior to effective control.
I think the rest of the answer goes to what Ms. Redmond has already stated about individuals being able to exercise certain collective rights. I think the non-derogation language...and there are several examples in front of us that all offer a variation of added protection or added clarification that there will be no derogation of others' rights. I think individuals are captured insofar as their rights are inherently collective. That's what I understand the courts to have set out.
Conservative
Arnold Viersen Conservative Peace River—Westlock, AB
Yes, but that was prior to having a codified government, right? Once this bill passes, suddenly we have codified governments that we didn't have, unless I'm mistaken, prior to this.
Federal Negotiations Manager, Negotiations - Central, Treaties and Aboriginal Government, Department of Crown-Indigenous Relations and Northern Affairs
We've recognized as part of the 2023 agreements that these are indigenous governments and that they are functioning as governments and that they are exercising law-making authority. I think the distinction you're touching upon is the difference between an asserted right and a right recognized under an agreement or a treaty that is given the force of law.
Conservative
Arnold Viersen Conservative Peace River—Westlock, AB
I hope, Jamie, that you're coming to my logic here and we'll get your support shortly.
Liberal
NDP
Lori Idlout NDP Nunavut, NU
Thank you.
To repeat my question—I don't think I was heard—if Mr. Viersen's recommendation is to allow the interpretation of Métis individuals asserting those types of things, what could be the potential legal impacts? When I look at Bill C-53, I see it as good protection against identity theft. We know there are a lot of “pretendians” out there.
Because of our status, our beneficiary list and the registries, we are able to confirm, through our collectives and through our governments, who indigenous peoples are. I wonder if opening that interpretation creates a loophole for those people who might not be indigenous to try to assert indigeneity. I wonder if that could be allowed to happen in this legislation.
I don't know if I am interpreting it correctly, but is it a possibility that this would happen?
Legal Counsel, Department of Justice
I think I can give at least a partial answer to your question.
To reiterate what I said before, the right to self-determination and the inherent right of self-government are collective rights. It would be unusual and a departure from how these rights are referred to in other statutes and in other treaties and agreements for those rights to be referred to as relating to individuals, despite the exceptions, of course, whereby certain collective rights that can be exercised have a component of individual exercise.
Therefore, it's not really clear how that would be interpreted, because that would be, as I understand it—on my understanding of it today—a novel way to describe that in law.
NDP
Lori Idlout NDP Nunavut, NU
Then keeping it as collective rights—because that is how colonial governments have learned to recognize indigenous peoples' world view as always taking care of each other—for instance, through harvesting rights—is that acknowledgement. I don't know that we need a whole history given to us about how we came to ensuring collective rights when it comes to indigenous peoples.
What I'm saying to this committee is that we need to be very careful when we are considering this, because of the world view that indigenous peoples—first nations, Métis, Inuit—had before colonialism, as Michael McLeod was saying earlier. That is why we've always talked about collectives. That is why we've always talked about families. When we talk about a family, we're not just talking about a nuclear family; we're talking about extended family, our grandparents and our aunts and uncles. Because of that, these can be seen as protecting that sense of nation within those indigenous families.
I know it is a difficult question. I understand what he is trying to do, but I think that we need to be very careful.
I know you are being bureaucratic when you say that this is unusual. To me, it is not just unusual, but it is the potential for Pandora's box opening. It is a sincere concern, which I know Michael shared briefly in his testimony.
We need to be careful. We need to make sure that we don't do it just because it's not unusual.
Legal Counsel, Department of Justice
Yes, I appreciate what you're saying, and I don't think I can say more beyond “collective rights apply to the collective”. For that reason alone, aside from perhaps others that you've raised—and I leave those to you—it makes sense for collective rights to refer to a collective.
Liberal
Ben Carr Liberal Winnipeg South Centre, MB
Mr. Chair, I would like to refer back to something that I've now raised for the third time.
Mr. Viersen, I believe you were here for the duration of a very long set of testimony that we have all been a part of over the course of this study. These questions have been dealt with time and time again. I am starting to question the legitimacy, perhaps, or the root cause, of where some of these questions are coming from, as I'm having a difficult time understanding what's missing from the clarification that's needed vis-à-vis the amendment you've put forward.
Is there anything, I ask our officials, that has changed since I last intervened vis-à-vis what you have heard, including what you've spoken to in regard to the subamendment, that would lead you to believe that the group for which Mr. Viersen—rightly so—has raised concerns in search of reassurances, a group in his home province, would lose out in any way, shape or form on the ability in the future to enter into a self-governing agreement or a treaty agreement with the Government of Canada by virtue of the language that's been put forward in these amendments?