International Trade Committee on June 14th, 2016

[National Chief Perry Bellegarde]

How you get beyond that point is you have to change all the curriculums in Canada, from kindergarten to grade 12, to teach treaty and aboriginal rights. You have to teach about the residential schools, the impacts of the Indian Act, and the intergenerational effects of these things. That's what has to happen.

We're not saying we want all 33 million people to leave Canada. We're in this together as indigenous peoples and non-indigenous peoples. We're to mutually benefit from sharing the land and resource wealth. That has to be taught, and people have to embrace it.

We say there are more than two orders of government in Canada, federal and provincial, and there are more than two founding nations, English and French. There are also indigenous peoples, nations within a nation. Nations make treaties. Treaties do not make nations. That's what we have. That's the concept we have: peaceful coexistence and mutual respect, mutually sharing the land and resource wealth. Those are the principles we have to teach to our children, your children, your constituents, my constituents. We have to teach them about those three orders of government. The feds are responsible for certain jurisdictions, provinces are responsible for certain jurisdictions, and some are intertwined, but also first nations governments are responsible for certain jurisdictions. That's what has to be mapped out, to respect that.

[Dave Van Kesteren, Conservative, Chatham-Kent—Leamington, ON]

Ms. Palmater, do you want to weigh in on that?

[Dr. Pamela Palmater]

The most important question you asked here today was whether there is consensus among first nations about the TPP. We're here to talk about the TPP. Canada would know that, had it consulted with first nations. That's evidence that Canada didn't consult with first nations. How is anyone supposed to know if there's a consensus on the TPP? Most first nations don't even know what's in the TPP, what the analysis is. They don't have any research assistants, supports, technicians. A minister talking to the national chief of the Assembly of First Nations, that is not nation to nation, and it's not consultation.

[Dave Van Kesteren, Conservative, Chatham-Kent—Leamington, ON]

You're right about that, but that wasn't my question. I asked whether there was consultation among first nations groups on how we're going to move forward.

[Dr. Pamela Palmater]

It's all on our own dime. All the research I did was on my own dime. Any of the other first nations, the few that have the time and resources to work on it, are working on it on their own dime because there's nothing to support them.

[Dave Van Kesteren, Conservative, Chatham-Kent—Leamington, ON]

Are you working towards a consensus? That's my question.

[The Chair, Liberal, Mark Eyking]

Sorry, but we have to wrap it up there. We're going to move on.

We're going to move to the NDP. Ms. Ramsey, go ahead.

[Tracey Ramsey, NDP, Essex, ON]

I want to speak about ISDS. I think you and others touched on it a little bit. I wonder if you could speak to the Bilcon case in Nova Scotia. They were talking about the development of a quarry on some aboriginal land. I don't know if you're familiar with it. The Bear River First Nation and the Mi'kmaq were involved in it. Despite the findings, despite an environmental assessment that said this wasn't something to do, under NAFTA, the tribunal voted against them and Bilcon was able to go ahead.

If you can, Ms. Palmater, speak a bit about ISDS and how it has affected aboriginal communities in Canada.

[Dr. Pamela Palmater]

I can't speak to the specifics of that case, but I can talk to it related to the TPP and other trade agreements whereby, whenever there's a dispute or there's arbitration, one of the biggest problems is that the majority of protections are with investors and not the states, and that according to all the United Nations experts, investors have been very successful in imposing fines or winning these cases against states that try to protect the environment or that try to protect food security or issues like that.

One of the issues with the TPP is that there's no process. There's no requirement that the arbitrators or anyone involved in the TPP know anything about indigenous rights and title. New Zealand specifically included a provision in theirs—I don't have the wording in front of me—which contemplated the fact that there should be a process that protects arbitrators and investors from interpreting treaty rights because that's a domestic issue, and it's a sovereignty issue as well.

There's no such protections in the TPP for Canada. Again, we have a problem. We are a country that was very specific about putting in that protection. The legal presumption internationally is going to be that Canada chose not to.

[Tracey Ramsey, NDP, Essex, ON]

Okay.

I wonder if you could speak a little more to the constitutionality and how the signing of this agreement violates our Constitution.

[Dr. Pamela Palmater]

At its very core, the Constitution protects aboriginal and treaty rights. The Supreme Court of Canada has interpreted that to mean, at a minimum, information, consultation, accommodation, and at times, consent. Canada now supports UNDRIP and the United Nations' position that UNDRIP applies at all international forums. It's great that Canada supported it, but it would have applied either way.

As for free, informed, and prior consent, we weren't even informed let alone consulted, so that's already violated the Constitution. The fact that there's no robust or specific protections for aboriginal and treaty rights that are constitutionally based at a minimum also violates the Constitution because the jurisdiction to make decisions over aboriginal and treaty rights is taken out of the hands of the state with these independent arbitration units and individuals. First nations don't even get to make submissions.

One of New Zealand's recommendations is that the Maori be included, that they do joint statements at arbitration or international tribunals, that the Maori be able to submit amicus briefs, for example, and that they're part of the New Zealand team that goes to any negotiations or any litigation. Canada hasn't even contemplated any of that.

[Tracey Ramsey, NDP, Essex, ON]

Okay.

[The Chair, Liberal, Mark Eyking]

Thank you. That wraps up your time.

We just have one more MP, and that's Mr. Peterson.

Go ahead, sir. You have five minutes.

[Kyle Peterson, Liberal, Newmarket—Aurora, ON]

Thank you, Mr. Chair. I want to thank everyone for taking the time to be here today. I thank Chief Bellegarde for his remarks and his presence with us today.

I have a few questions. There are a lot of bush lawyers around the table, but I am a lawyer, so I'm going to take this from a legal perspective. Some of my colleagues may refer to me as a bush lawyer.

[Voices]

Oh, oh!

[Kyle Peterson, Liberal, Newmarket—Aurora, ON]

Mr. Hunter, you're in B.C., and I know you got up early to be with us today. I want to give you a chance to elaborate a little on a B.C. perspective, an aboriginal perspective, on this deal and trade in general. You were cut off on your time, so I'll give you a chance to elaborate on your earlier comments.

[Troy Hunter]

Thank you.

I haven't had a chance to consult with a lot of folks in B.C., other than a client who says that while they have resources and would like to do partnering and get economic development going in their community, what it comes down to is that there's been a lot of economic progress made in the past 100 or more years where indigenous peoples have been excluded from that.

The document that I referred to, the 1910 “Memorial to Sir Wilfrid Laurier”, speaks very eloquently about that. They said that they were to be sharing the resources and waiting to get ahead, and all these promises had been made. Here we're talking about the TPP, and there's virtually no consultation with indigenous peoples, as far as I'm aware. I did have a cursory look last year at some of the measures, the new measures that could be implemented for indigenous peoples. I know there is a proposal for an energy corridor. That's what I suggest; perhaps that could be a special measure by recognizing it as a special reserve and making it federal land that's jointly operated by not just one band but many bands, as a joint band. There are possibilities that exist, but those conversations haven't even been held, as far as I'm aware.

The other thing is creating some sort of advantage for indigenous peoples. That's what's necessary here, because for the past 200 years there have not been those advantages. In order to level the playing field and close the economic gap, we need to make it more possible for foreign national corporations to make partnerships with indigenous groups that enhance the economy and the resources that are available to indigenous groups, and to take a sharing in that. That's from my perspective. I think that's what our ancestors envisaged being able to happen, and we need to take those special measures to make it happen here.

[Kyle Peterson, Liberal, Newmarket—Aurora, ON]

I appreciate those comments. Thank you for your input.

On that note, I think I'm hearing a consensus. Correct me if I'm wrong, but nobody here is opposed to trade per se. Nobody here is necessarily even opposed to a TPP. It was more the process, the non-inclusion, the fact that there's a deal and you're just kind of being consulted about it now. Is that fair to say, or are you always opposed to international trade?

[Dr. Pamela Palmater]

No, of course not. First nations have been doing it a lot longer than Canadians have been, but it's not only the process. You can't undo the fact that we were excluded. It's the content of the TPP as well. Even if you had included us and this was the result, we would still be opposed.

[Kyle Peterson, Liberal, Newmarket—Aurora, ON]

Right. I guess I was assuming that, were you included, the result would have been different because of your inclusion.

[Dr. Pamela Palmater]

We wouldn't have come to this result had we been included.

[Kyle Peterson, Liberal, Newmarket—Aurora, ON]

Yes, that's what I was assuming.

[Dr. Pamela Palmater]

Yes.

[Kyle Peterson, Liberal, Newmarket—Aurora, ON]

Okay, that's good.

Mr. Weinstein, is that fair to say for the Métis as well?

[John Weinstein]

I think we look at it from a somewhat different perspective. Instead of saying yes or no to the agreement, because I think practically we don't think we're going to really have that much of a meaningful impact on the outcome of that question, there is a third option, which is, what's in it for the indigenous people, and what type of measures will be taken to proactively ensure that indigenous peoples benefit from it?

One of the representatives here mentioned that there's a number of provisions in there that shelter section 35 rights, shelter procurement programs, shelter aboriginal financial institutions as state-owned enterprises so that their investment practices aren't challenged. That's fine, but that's really kind of protecting the status quo. It's just saying that the limited progress that we've made won't be reversed. However, in terms of exploiting the opportunities that come out of the TPP, it would be helpful if the government could indicate what type of measures are going to be taken to encourage joint ventures with foreign investors, things like that. That would really be key.

I know the current government has established nation-to-nation relationships with the three indigenous peoples as a priority, and we're involved in the environment and climate change talks, health accord talks, on that basis, which is very good. The same approach, I think, should be taken to the trade initiative. As I said, and as the AFN has pointed out, the MNC, indigenous peoples were the original free traders.

Some measures have to be taken. Whatever proactive measures could be taken or signalled to enhance the international trade position of indigenous peoples, there would be—