Indigenous and Northern Affairs Committee on Dec. 11th, 2023

[Martin Reiher, Senior Assistant Deputy Minister, Treaties and Aboriginal Government, Department of Crown-Indigenous Relations and Northern Affairs]

Mr. Chair, I'd like to add that, with respect to the concern that this might be too broad, the term is also characterized by the fact that it says “that is authorized to act on behalf of the Métis collectivity”. The indigenous governing body is the concept that allows this provision to say that the Métis government is able to act as the government on behalf of the Métis collectivity. It specifies that it's about the Métis collectivity that is referred to in the schedule. We believe it is actually focused towards the right body.

[Michael Schintz]

Could I just add one small point?

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

Absolutely, go ahead.

[Michael Schintz]

I would also note that there are proposed amendments that seek further clarity on the point of representation, namely NDP-4.2.

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

I get that.

I guess the other thing I would come back to is the clarity around the Métis government. Nobody is disputing the Métis government thing, or I haven't heard anybody disputing that. I'm not. I'm not disputing whether it's a government or whether it has rights. That's what we're doing here. In fact, in the definitions, there is a definition of a Métis government. It defines what it is, and that's why it's in the schedule that way.

If the broadening of the term includes indigenous groups, communities or people, we've had this discussion on community and collectivities. We said, no, it is collectivities, because that's how we recognize section 35 rights holders. I think that was the explanation. However, this term actually includes communities, groups and people, which now drills down to the level of individuals in my opinion.

I think we're broadening Métis government to something beyond what we all here understand this legislation to be. My concern is that we're trying to alleviate the fears of some of the people who are thinking they're caught up in something where we're telling them they're not.

Let's just be clear, so that we're not having a battle 10 years from now on this.

[Julia Redmond]

I don't think there's much to add from what has been said before. The federal understanding of this is that the term is being applied in the context particular to this bill, so “Indigenous governing body” here isn't with a broad definition that could capture all these others in a way that you're describing. It's applied here in the context of Métis governments authorized to represent Métis collectivities, all of which are listed in the schedule.

[The Chair, Liberal, John Aldag]

There we go....

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

Then you're saying that the definition of “Indigenous governing body” that we hear across all these other pieces is different from what it is here.

[Michael Schintz]

I would say that the testimony has been that the term “Indigenous governing body” has been used in legislation where it is capturing a broader set of indigenous governments than we intend in this bill, which is only with respect to three Métis governments who represent the rights of their collectivities as listed in the schedule.

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

The line in the clause already says governments.... I'm sorry. Let me make sure. It says, a Métis government set out in column 1 of the schedule that is authorized to act. This whole clause is in essence about recognition and making sure we get the recognition right—the recognition which, with all due respect, you've just said is about the Métis government. However, when we add “Indigenous governing body”, I'm concerned that we broaden that, because in all other contexts that term means more than that.

For example, the Metis Settlements General Council talked about this. Is the MNA authorized to act on behalf of other groups? In the agreements, it's very clear. When I say “the agreements”, I'm talking about the February 23 agreements, and I'm going to use just one of them for now because I only had so many hours on the weekend to look at terms and definitions and whatever.

I'm thinking there's some commonality, but there are definitions of citizenship. There are definitions of.... I've already talked about “Indigenous government”. There are definitions. I'm looking at Saskatchewan in this case. For the “Métis Nation”, there's a very clear definition of who that is. When we think of that in the context of the schedule and column 1 and column 2, that's pretty clear if we go back to the reference of the definitions in the agreement. However, that's not in the legislation. There's no reference in the legislation to the agreements other than in the preamble, where it says:

Whereas the Métis Nation of Alberta, Métis Nation of Ontario and Métis Nation - Saskatchewan have signed self-government recognition and implementation agreements with the Government of Canada on February 23 and 24, 2023, and those agreements contemplate the parties negotiating self-government treaties;

There's no reference in this legislation, in my word search capabilities, to the agreements that were signed in February other than that.

[Michael Schintz]

There's a very specific reason for that, which is that this legislation does not implement or give legal force and effect to those agreements. The agreements set a framework for what the—

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

They stand on their own. Is that your point?

[Michael Schintz]

Yes. They're contracts that set a framework for what those treaties will look like, which will be.... This is the framework to give force and effect to those treaties in the future.

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

Yet this is the legislation that is contemplated in those agreements.

I'm sorry. We're just not rolling forward, in the actual legislation, any of these other specific definitions, and I think we could add clarity to ease the minds of some of the people concerned. We could add clarity if we answered some of these questions. I think we could ease the concerns of some of the people who have expressed their opinions to us over the course of—what?—the last couple of months as we've debated this and as we've had people sitting where you're sitting and talking about this.

That's where I'm coming from. Let's get this as right as possible so that we're not dealing with other litigation and court cases down the road someday from people who will say, “You could have done it when you did this, but you didn't.”

That's where I'm trying to come from here. It's to say, “Hey, let's get this right.” Let's get this right on the front end, so to speak.

[Michael Schintz]

I certainly understand. I don't have the power from this chair to propose amendments.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Do you want to suggest some?

[Michael Schintz]

I understand what you're saying. I noted that I think there are some amendments tabled before the committee that are upcoming and seek to add some of that clarity. I take your point, Mr. Vidal, and I have noted that.

The definition typically used for “Indigenous governing body” is somewhat broader than simply contemplating Métis governments.

I don't have much to add beyond what we've said thus far.

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

I'm going to come back to the question. I don't think I got an answer, earlier. Why is it here, then? I think this stands alone on its own without that term added. What's the purpose of it being here? Why did we add it in? Can somebody give...?

I don't think the other amendments we're contemplating later deal with this. They deal with communities versus collectivities. They do not deal with this term in the recognition clause.

[Michael Schintz]

You're quite right. I'm not intending, nor am I here, to mislead.

I've sought to answer this.

As an official who was part of the codevelopment process with our partners to arrive at the mutually supported text of this bill, I think there was a very specific interest in noting that these governments, which had their rights denied in the past—including by the Government of Canada until the Daniels decision in 2016, which made clear to Canada that Métis are a federal responsibility.... There's been a long history of denial of the rights and authenticity of these governments as indigenous governments.

I think it's been our testimony collectively here today that the use of that term does not do more than recognize that these Métis governments represent rights holders. I'm all for added clarity, but I don't think the risk you're concerned about and that you've laid out here today is created by the usage of the term in this provision.

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

I would have to ask a process question of the chair and the clerk.

In your opinion.... We haven't proposed an amendment to take it out of this clause, at this point. If we were to do that, would there be something lost?

[Michael Schintz]

I can say, confidently, that our partners would feel something is lost. Whether or not the effect of the clause would change.... I'll defer to my counsel in a moment, but I personally don't think it would. I also think that's a reason not to remove it, Mr. Vidal.

[Julia Redmond]

I would add that one of the other functions of that term is, essentially, to reflect what is now more commonly used to describe indigenous governments. That's not to say it imports every part of that definition, as we've described it. It's broader. It's meant to capture a broader set of indigenous governments. Here, it's being applied in context. It essentially applies a term we see being used more often in statutes now, and which is commonly understood, to mean what it says here.

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

I'm sorry. That just causes me to ask this question then: In a broader sense across the legislative process, or in legislation in general, when that term is used, is there...? When it's not defined differently, is the...? I've looked over a number of pieces, but I haven't looked across the legislative context of the entire Government of Canada, to be honest with you. Is there an accepted understanding across the government of that definition? You're saying that, in the context here, it means this, but in the context of how it's used uniformly across legislation in general, is that different? Is it the same?

If it's different, we should clarify that in the definitions here.

[Julia Redmond]

I think this goes back to the answer we've already given.

In contexts where the term “Indigenous governing body” is used in a bill that applies to all ranges of indigenous governments—these could include bands, councils or the different forms of indigenous governments we see across Canada—a definition can capture that range.

Here, that term is being applied in context. We're not talking about all types of indigenous governments. We're just talking about these Métis governments, which are a type of indigenous government. There's no need to capture that breadth of other possibilities, because it's simply not relevant to the bill.

To your question, yes, there's an understanding of what this means here. It's spelled out in that paragraph. They're authorized to act on behalf of the collectivity. That's what it means to be an indigenous governing body.

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

Mr. Chair, you might need the advice of the clerk, because I don't know this.

Before we are finished with clause 8, we have a couple of other amendments. If I wanted to draft a potential amendment, can you just clarify for me what the process would be?