International Trade Committee on June 14th, 2016

[The Chair, Liberal, Mark Eyking]

Good morning, everybody, and welcome to Tuesday. Welcome, panellists.

We're doing the TPP right now, how it affects Canadians and other countries. We have a very busy committee. We're dealing with softwood lumber and the TPP; we're finishing up the European agreement, but our main focus is on the TPP.

We've travelled to the western provinces already, as well as Ontario and Quebec. We'll be doing the Atlantic provinces in the fall. We'll be connecting with the territories also in the fall. We have been taking submissions from Canadians across the country, and MPs will be hosting some town halls. We'll be getting all that information. We're hoping to have this study done by the end of the year to present to Parliament.

Today we're going to be focusing on the effects the TPP will have on the indigenous community. We're appreciative of the witnesses who are coming forward today.

We have, as an individual, by video conference from B.C., Mr. Hunter. Good morning, it's good to see you.

[Troy Hunter, Barrister and Solicitor, Sea to Sky Law Corporation, As an Individual]

Good morning. Thank you.

[The Chair, Liberal, Mark Eyking]

We'll be connecting with you in a minute.

Also as an individual witness, we have Pamela Palmater. Welcome.

From the Assembly of First Nations, we have Perry Bellegarde. Good morning. William David is also with the Assembly of First Nations.

From the Métis National Council, we have John Weinstein.

We're going to get started. If you have any questions for Mr. Bellegarde, it would be appreciated if you could get them in early. He has to leave at 10. He's going over to the other side, to the Senate.

[National Chief Perry Bellegarde, National Chief, Assembly of First Nations]

Yes. I'm going to do the pipeline one.

[The Chair, Liberal, Mark Eyking]

Without further ado, we'll get started. Perry, you can go ahead and kick-start it.

[National Chief Perry Bellegarde]

Thank you, and good morning, friends and relatives.

[Witness speaks in Cree]

That's a little bit in Cree.

I'm very happy to be here. To the men and women, I acknowledge the creator for another beautiful day. To the respected members around the table, I greet you all in a humble, respectful way. I'm very honoured to be here to offer my remarks on the trans-Pacific partnership. My remarks focus on the impacts of international trade agreements on first nations treaty and inherent rights. The current approach to the TPP is not consistent with the government's commitment to rights recognition, respect, co-operation, and partnership. That's the first point I want to make.

We have several recommendations for action on the TPP affecting all first nations and indigenous peoples.

The government should immediately consult with all first nations, especially those who will be directly affected, on the potential impact of TPP on first nations rights, especially the right of self-determination.

The government should meaningfully involve interested and affected first nations on future bilateral negotiations related to the TPP, particularly bilateral negotiations with the United States. This is going to be good timing, because of the three amigos summit coming up on June 29. It's good to get this on to the agenda. The government should prepare and release an assessment of the TPP's impact on human rights. The government should also establish a first nations trade commission service, and it should also establish a trade investment fund for first nations and indigenous peoples.

There are a number of issues we won't be able to discuss given the time constraints of this appearance, but the Assembly of First Nations can and will follow up with a more fulsome written submission. Today I plan to touch on four points: one, investor state dispute settlement and first nations; two, impacts of the TPP on first nations self-determination; three, full and effective participation of indigenous peoples in implementing the TPP; and four, positive measures to facilitate first nations engagement in international trade.

Regarding the first point, investor state disputes and first nations peoples, our first concern relates to the investor state dispute settlement, or ISDS, provisions of the TPP. The ISDS provisions are not new to first nations. For example, the North American Free Trade Agreement contains an ISDS chapter. This is of particular concern to first nations, given that many federal and provincial actions to recognize the rights of first nations may be deemed indirect expropriations to investors under the TPP or other trade agreements. The ISDS provisions obligate Canada and investors to adjudicate the scope and content of first nations rights between each other. Some of the worst legal cases have resulted from third parties arguing about the scope and content of our rights without first nations present, most notably the St. Catharines Milling and Lumber case.

We know from our experience with NAFTA that investor state disputes related to first nations rights are likely. We know that a Canadian investor challenged a law passed by the State of California to protect an indigenous sacred site. We also know that an American investor once issued a claim implicating first nations treaty harvesting rights. We also know that several state-owned enterprises and investors from TPP countries are currently attempting to approve projects that might adversely impact the rights of first nations peoples. Finally, we know that some provisions of the Canadian Environmental Assessment Act have been deemed discriminatory under the North American Free Trade Agreement.

As to the second point, the TPP will have a dramatic effect on first nations self-determination, particularly self-government. This is especially true for first nations that have treaties or self-government agreements containing clauses on international legal obligations. For these first nations, the international obligations of Canada become the obligations of the first nations government. Depending on the content of the TPP, clauses on international legal obligations will curtail first nations constitutional rights under such agreements. This is why many of these agreements also contain clauses that obligate the government to consult with first nations before agreeing to any new obligations that might impact the right of self-determination recognized through the agreement.

We're calling on Global Affairs Canada to immediately conduct and share with all first nations an analysis of all potential impacts of the TPP on first nations self-governance.

The third point is that further negotiations are needed with first nations. The TPP text is not the final text. We know several countries will continue to exchange notes related to the implementation of the agreement. Therefore, we are calling for the immediate and full inclusion of first nations governments in future negotiations on the implementation of the TPP.

We further call for the development of a human rights impact assessment for the TPP. This follows from a recommendation from Olivier De Schutter, the former United Nations special rapporteur on the right to food, who called for a human rights impact assessment for all new international trade agreements. Such an assessment would use the UN Declaration on the Rights of Indigenous Peoples as a basis for assessing the impact of the TPP and ensuring that implementation of this trade agreement would support the rights of indigenous peoples rather than undermine them.

The fourth point has to do with creating a first nations trade commissioner service. The TPP, as with any trade agreement, could serve to facilitate greater economic growth for first nations people. Engagement with international markets could function as a catalyst for re-emergent first nations trade. To help achieve this potential, the federal government should develop a first nations trade commissioner service, functioning on a parallel track to the Government of Canada's trade commissioner service. The FNTCS would develop and deliver supports and programs to first nations businesses and entities interested in exploring the broader market.

Much like the TCS, the first nations TCS would provide services and advice on export issues, establishing companies abroad, market access issues, guidance on how to participate in global value chains, and support for expanded partnerships between first nations companies and other players in the global market.

As an example, with respect to potash, Chief Reg Bellerose from Muskowekwan is developing a trade agreement with India, directly. It has to tie in with rail, with shipping, but he's secured a market in India.

[The Chair, Liberal, Mark Eyking]

Could you wrap it up, because we're well over time.

[National Chief Perry Bellegarde]

Last, another support for first nations trade growth would be the creation of a trade investment fund for first nations. By investing in first nations value chain enhancement, indigenous businesses would grow by creating further employment opportunities, increasing incomes for first nations business employees. This fund would promote the economic vitality of first nations by adding value in communities most affected by development by providing sustainable and predictable financial supports for first nations business entities interested in reaching new international markets.

These specific programs and incentives, like the development of an indigenous trade investment fund, should empower first nations by helping ease barriers such as access to capital and trade literacy.

Very quickly, Chairman, that's my presentation. I'll leave it at that.

Thank you.

[The Chair, Liberal, Mark Eyking]

Thank you, Chief.

I remember you were in Eskasoni. It was good to see you in Cape Breton, and it's good to see you again.

[National Chief Perry Bellegarde]

Okay.

[The Chair, Liberal, Mark Eyking]

We'll go to the Métis National Council, and the chief of staff, John Weinstein.

Go ahead, sir.

[John Weinstein, Chief of Staff, Métis National Council]

Thank you.

President Chartier of the Métis National Council is not here today. He thanks the committee for having invited him. He's in Santo Domingo where the Organization of American States is considering, and possibly ratifying, a new international indigenous rights instrument.

He did meet with Parliamentary Secretary Lametti on May 30 and we did go through a lot of the issues pertaining to indigenous peoples. We set out our positions on them in a letter to the parliamentary secretary on May 30. That letter is available.

Very briefly, for the Métis nation, the whole issue of free trade is historically rooted and is actually an integral part of their existence because Métis are really children of the fur trade. In fact, historically, the growth of Métis identity on the Prairies was the result of the struggle over free trade with the Hudson's Bay Company.

In fact, this Sunday marks the 200th anniversary of the Battle of Seven Oaks in Winnipeg where the Métis defeated the Selkirk settlers and the armed forces of the Hudson's Bay Company. The issue there was regarding attempts to place restrictions on Métis free trade. Following that battle their struggle against the Hudson's Bay Company continued, culminating in 1849 when Louis Riel's father led a group of armed Métis that forced the courts to release a Métis free trader, William Sayer.

The conflict revolved around the insistence of the Métis to be able to trade freely with the United States. The Métis had their own lawyer in London, Alexander Isbister, who took their case to the British parliamentary committee that was challenging the monopoly, or investigating the monopoly of the Hudson's Bay Company. It's a long-established tradition for the Métis to be very keen on free trade, but again, on terms to protect their national interests.

Today, the issue is looked largely through the prism of jobs. The labour force participation right of Métis is getting quite high. In some cases higher than the national population, but the impact of trade agreements like this on the industries with which their communities are interfacing is critical. The biggest employers, for instance, would probably be Manitoba Hydro, Cameco, the energy companies. The impact of the trade agreement on those companies is critical.

The provisions of the TPP to protect preferential policies such as procurement or the indigenous financial institutions is of critical importance to the Métis nation, because so much of the job creation can be attributed to the efforts of Métis nation capital corporations that have financed a lot of small business that have created a lot of jobs. It would be absolutely imperative to protect that and to protect the preferential procurement policies which have also contributed greatly to job creation and small business development.

As I said, the more detailed positions are set out in the letter to the parliamentary secretary. We'd appreciate any opportunity to continue in these discussions. As a final issue, the national chief said that binational relations with the United States for the Métis nation are critical right now because, in fact, in terms of labour mobility, green card access and the rest, it's actually much worse today than it was 20 years ago. That is a big issue.

[The Chair, Liberal, Mark Eyking]

Thank you, sir.

We'll go to Pamela Palmater.

[Dr. Pamela Palmater, Chair in Indigenous Governance, Department of Politics & Public Administration, Ryerson University, As an Individual]

Bonjour. Good Morning. Ni'n teluisi Pam Palmater. I'm from the sovereign Mi'kmaq nation that rests on unceded territory in most of the Atlantic provinces.

First, it's my responsibility and honour to acknowledge the traditional territory on which we sit.

In terms of my background, I've been a practising lawyer for 18 years, specializing in legislation and laws impacting first nations, both domestically at parliamentary committees and at the United Nations, most recently on the treaty negotiations for transnational corporations and the lethal harm it does to indigenous communities.

The most important point here is that trade and treaty are the foundation of Canada, not just politically but legally. Canada would not exist but for the relationships cemented in treaties which originated from trade, and trade is a joint jurisdiction of sovereign first nations in this country with Canada. The current TPP agreement violates that jurisdiction, but worse than that, legally it violates the Constitution.

By not including first nations, by not having consulted with first nations—and a five-minute presentation, with all due respect, is not consultation with all the first nations in this country—we have violated Canada's Constitution. The TPP itself violates Canada's Constitution.

The Supreme Court of Canada has already recognized that many first nations, including the Mi'kmaq, sustain themselves and govern themselves through trade. They fought to the death to protect their trade routes and their jurisdiction to manage and govern trade. That right has never been surrendered or ceded and still is valid today. You can see that in the Mi'kmaq treaties of 1760-61 and 1752, which not only mention trading rights but Mi'kmaq rights to trade anywhere to their best advantage. I would argue that also includes trading with other nations like Canada, the United States, and the rest of the world.

These rights and agreements are the foundation of Canada, and because these rights and agreements have been incorporated into the Constitution, if they are not respected or included in the TPP, they naturally violate the Constitution, making the TPP not able to be ratified. Without substantive amendments to the TPP, Canada cannot legally ratify this agreement, whether every Canadian is on board or not. We have a problem with the legality here, both domestically and internationally.

Aside from treaties, and the treaty right to trade and jurisdiction over trade, there are also first nations that have aboriginal title lands. We know from the Tsilhqot'in case what aboriginal title land means. It means the exclusive jurisdiction to determine what happens with the lands and resources and benefits in that territory. Exclusive means exclusive. Nothing in the TPP can happen on any aboriginal title lands in this country without the consent of first nations. That's not just aboriginal title lands in B.C., but the Mi'kmaq don't have land surrender treaties, so all of our lands are unceded as well.

Domestic law requires, at a minimum, consultation, accommodation, and Delgamuukw said even consent. Tsilhqot'in confirmed consent. International law, which the Prime Minister has now recommitted to in his commitment to implement UNDRIP, requires free, informed, and prior consent. There's simply no way around that. First nations haven't even been involved, and we're being asked to comment now on a done deal. We wouldn't be sitting here with this problem about whether we consent or not had first nations been engaged from the very beginning at international negotiations.

Even worse is the human rights aspect in all of the instruments and documents that Canada has ratified. All of the UN experts, all of the special rapporteurs on food, health, the environment, independent judiciaries, democracy, indigenous peoples, unanimously agree that the TPP violates these international instruments, and in fact could spark international insecurity and violence in these countries. Canada is no exception to that. It protects the investors and not the states. Canada should actually be a little more self-interested in the erosion of state sovereignty that the TPP has done with all of the excess powers given to investors, even setting aside what indigenous interests are.

I have 5,000 recommendations. I couldn't possibly list them all here, so I'll just hit the highlights. One is that I agree with the UN experts that there should be a moratorium on the TPP process until there is a fair, open, and democratic process within Canada, not just with Canadians, but a special process with first nations who have not been engaged to date.

There should be a joint consultation process, and there's a whole bunch of recommendations under that. Indigenous peoples' lands and resources must be protected from the TPP. There are options. You can either exempt indigenous lands, resources, rights, and interests from the TPP's application, or you can have specific protections like New Zealand has.

I would argue for a stronger treaty protection than what New Zealand has, but they at least argued for a treaty exemption for the Treaty of Waitangi, because of their constitutional obligations. Canada didn't even bring that to mind and didn't even have that discussion, despite the fact that it's in its own Constitution.

International human rights obligations have to be specifically incorporated within TPP. Investor state dispute resolution mechanisms cannot touch aboriginal rights and interests of any kind, domestic or international. It's simply not up to arbitrators or investors to have any interpretation or say over those rights.

Canada should specifically ratify, and include in the TPP, the Nagoya Protocol, which specifically protects fair and equitable sharing of benefits from genetic resources. It should not just sign a side letter, but should specifically incorporate it.

Last, there should be a protocol that's specific to indigenous peoples being part of every single trade and investment process, and not just the TPP, but every one going forward and retroactively address the ones that they haven't been a part of.

Thank you.

[The Chair, Liberal, Mark Eyking]

Thank you.

We'll go to B.C. now.

Mr. Hunter, you have the floor.

[Troy Hunter]

[Witness speaks in Ktunaxa language]

Thank you for having me this morning.

I was just notified on Friday of this invitation, so my presentation is not as polished as the others. However, I will begin.

I wrote an article about TPP promises and the aboriginal peoples in Canada—that was two weeks prior to the election—with uncertainty as to how it was going to go down. I wanted to remind Canada that there are ameliorative measures that need to be taken when it comes to indigenous peoples.

We talk a lot about levelling the playing field and closing the economic gap between indigenous peoples and everyone else. I will mention some statistics.

Indigenous peoples have the highest rate of unemployment in Canada with 14.8% for aboriginal peoples, whereas the national average is 6.3%.

Along with unemployment, the number of indigenous peoples incarcerated in the prison system has risen. The correctional investigator of Canada said that 25.4% of the incarcerated population are now of aboriginal ancestry and that efforts to curb the high numbers don't seem to be working, even though they take background factors into consideration in sentencing. He points to poverty, the history of colonialism, and the lingering effects of residential schools as reasons that so many aboriginal people suffer from alcoholism and other problems that land them in the justice system.

To make matters worse, it's been said that there are more indigenous children in care today than there ever were when residential schools operated. Statistics Canada recently announced that aboriginal children represented 7% of all children in Canada in 2011, yet they accounted for almost half, 48%, of all foster children in the country. In addition, it's been found that foster care predicts higher adult criminality for males first placed during adolescence between the ages of 13 and 18. Chances are that indigenous children that age, especially males, will have a higher possibility of criminal charges and ultimately prison sentences.

The problem of over-representation in the prison system and foster care is endemic to policies that work to destroy the fabric of indigenous peoples. In 2015, the Truth and Reconciliation Commission of Canada and Justice Murray Sinclair made a finding of cultural genocide with the following:

Residential schooling was only a part of the colonization of Aboriginal peoples. The policy of colonization suppressed Aboriginal culture and languages, disrupted...government, destroyed Aboriginal economies, and confined Aboriginal people to marginal and often unproductive land. When that policy resulted in hunger, disease, and poverty, the federal government failed to meet its obligations to Aboriginal people. That policy was dedicated to eliminating Aboriginal peoples as distinct political and cultural entities and must be described for what it was: a policy of cultural genocide.

This is not the vision our ancestors had in mind when the treaties were negotiated, or promised to be negotiated. There were promises of reconciliation made in the 19th century where the chiefs had received royal staffs or medallions with the notion that the crown would do them right. As required under the Royal Proclamation of 1763, they created a 1910 document from the chiefs in B.C. and handed it to Sir Wilfrid Laurier. That document talked about the history of colonization in British Columbia and promises that had been made by the fur traders in the North West and Hudson's Bay companies.

When the British occupied the land in B.C. in 1858, they brought with them a different attitude than those at the time of first contact. In B.C., they basically stopped negotiating treaties. The Royal Proclamation of 1763 required that the land that was unceded belonged to the indigenous peoples and that a treaty needed to be made. In B.C. there are very few treaties. The B.C. treaty process is pretty much a failed process. Indigenous peoples have to borrow funds to negotiate, and the tribes out here are having difficult times proceeding with that.

The findings in the St. Catharines Milling and Lumber case, when it went from the Supreme Court of Canada to the Privy Council in England, said that unceded land is basically under item 24 of section 91. It's land that's reserved for the Indians. British Columbia doesn't have the right to enter into an agreement that would impact the land.

When we talk about unceded land, such land also requires the consent of the indigenous peoples under the provisions of the Indian Act, because section 36 of the Indian Act provides that any land that was reserved, whether it's recognized or not, falls under the surrender mechanisms of the Indian Act.

[The Chair, Liberal, Mark Eyking]

Could you wrap up, sir, and give your conclusion.

[Troy Hunter]

I can.

There's unfinished business within British Columbia. That's the treaty-making process.

After the unfairness that has occurred over the past 200 years, to enter into an agreement that opens up the doors for other people around the world to benefit and gain is not right. We need to have special measures that would take into consideration giving indigenous peoples some sort of monopoly over an energy corridor or whatnot. Some things have to change.

I will be making a proper written submission later.

Thank you.

[The Chair, Liberal, Mark Eyking]

Thank you, sir.

I thank all the witnesses for their presentations. If there are any points that you didn't get across or things you want to add later on, we will be taking submissions. We will take anything you want to send to our committee and put it into the context of our report.

Without further ado, we will have dialogue with the MPs now. We'll start off with the Conservatives, for five minutes.

Mr. Ritz, go ahead.

[Gerry Ritz, Conservative, Battlefords—Lloydminster, SK]

Thank you, Mr. Chair.

Thank you for your presentations today. There are very interesting aspects in them.

I'm not a lawyer. I've never been under the ideological view that somehow trade agreements supplant our Constitution and our charter, in which treaty rights and aboriginal rights are embedded. I'm not quite sure how we leap a trade agreement supplanting all of that. It didn't happen under NAFTA. It's not happening under CETA. I'm not sure why we're targeting the TPP, as if somehow this is all going to fall apart.

I would like your points on that, if you can provide them, as to what specifically in the TPP is going to supplant our ability as a country to manage our charter and our Constitution.

[National Chief Perry Bellegarde]

Let legal counsel go first and then the bush lawyer will go second.

[Gerry Ritz, Conservative, Battlefords—Lloydminster, SK]

That's me too, Perry. That's why we have such good discussions.

[Dr. Pamela Palmater]

There actually are problems with all of the trade agreements that currently exist. The reason you don't have anything in front of you is that indigenous peoples haven't had the funding to challenge them directly. The international and domestic processes are exceptionally expensive. It's one of the reasons the United Nations is recommending an international treaty to govern transnational corporations, because current countries such as Canada don't make any accommodation, take accountability or responsibility for the crimes that transnational corporations such as the Hudbay Minerals mining company, for example, commit not just in Canada but around the world.

If you look at the balance of protections, the vast majority of protections under the TPP go to the investors. The wording of the TPP is very specific and could be detrimental. The Waitangi Tribunal has already looked at this issue, for example. The question was whether or not the TPP violated their own constitution. They said it didn't, because it had a treaty protection clause for the Treaty of Waitangi. They said that even though that's the case, there are far too many protections for the investors and the wording, and that the interpretation is detrimental to the states themselves, let alone the indigenous peoples within them, because of what's considered a favour.

[Gerry Ritz, Conservative, Battlefords—Lloydminster, SK]

In that particular example, first nations can be investors as well and are seeking that type of protection.

Perry, you brought up Reg Bellerose and his investment with Encanto. He's looking for those types of protections as he takes on partnerships with groups in India. They're not part of the TPP, but certainly ISDS clauses would give Reg and his band some sort of protection, in that they're opening up their lands to Indian investment and so on. I'm a little bit at cross purposes as to how that would not protect first nations as investors.

There's also a case from 2004, where then chief Fontaine intervened on behalf of investments in a tobacco company and actually won the case because of the indigenous rights that were there.

[National Chief Perry Bellegarde]

I think on the bigger issue, Mr. Ritz, in section 35 of Canada's Constitution, existing aboriginal treaty rights are recognized and affirmed. That's part of Canada's Constitution, but there are also a lot of key things that are addendums to Canada's Constitution, like the Royal Proclamation of 1763, like subsection 91(24), like the 1870 order in council. All of those are part of addendums, but existing aboriginal treaty rights....

We have an inherent right, section 35. It's the definition of the inherent right to self-determination. We still have unextinguished aboriginal title to lands and resources, so that's contained therein.

Indigenous peoples haven't been involved with the TPP. We have never been involved with NAFTA. We haven't been involved with FIPA, all these international agreements.

From an indigenous person's perspective, what is Canada doing going out there and selling all these natural resources to the world, when we've never given them up as indigenous peoples? That's where we come from. Again, the example of peaceful coexistence and mutually benefiting from sharing the land and resources, we can get into that.

In Saskatchewan, Manitoba, and Alberta, there's a whole other thing called the Natural Resources Transfer Agreement, which is something else we have to get into, because we say we share this much, the depth of a plow, nothing underneath. All these things come into play.

The basic bottom line is, when Canada is going out from a first nations perspective there is this title thing or this idea of assumed crown sovereignty, assumed crown jurisdiction. That's what we're going to start getting into, because the doctrine of discovery and the concept of terra nullius are starting to be viewed as illegal and racist doctrines. That's where we're coming from, so when Canada is going out, we're saying indigenous peoples have to be involved, free and prior informed consent, duty to consult and accommodate, but recognition of jurisdiction.