International Trade Committee on Sept. 18th, 2017

[Max Skudra]

I think that the first thing and the minimum thing is the exceptions that Wayne and I were discussing. I think that expanding the scope of federal action, especially around procurements of aboriginal companies, beyond just set-asides to more proactive initiatives would be a mandatory minimum we would like to see. I think that it would be very important, as well as protect other key interests around intellectual property and traditional knowledge. The protection of traditional knowledge in particular would be another high priority from CCAB's perspective.

[Peter Fonseca, Liberal, Mississauga East—Cooksville, ON]

Thank you.

Go ahead, Mr. Williams.

[Wayne Garnons-Williams]

It would be enabling legislation for international inter-tribal trade to basically make right past wrongs concerning the principles underlying the pre-existing economic right of inter-tribal trade.

[Dawn Madahbee Leach]

I work every day financing indigenous businesses and we do have businesses that are doing trade in the U.S. already. It is easy for them to do trade in the U.S., more so than for companies that come to Canada, so this enabling legislation would be most helpful. Also, recognizing intellectual property and that we need to have those kinds of things, as well as meaningful procurement.

Our procurement system that we have here is not measurable. There's nobody making sure that it's actually happening and that there's a report done to provide the public with the fact that this many indigenous businesses are actually doing that. There's no audit of it. I think we need to do that to show that there are actually indigenous businesses benefiting from what this government's contracting out.

[Max Skudra]

If I could just second that again. What you see in the private sector are points on scorecards. You're seeing really progressive work to drill down supply chains. If Bruce Power puts out a $250-million nuclear refurbishment procurement, there's no aboriginal company that can do it. They're very good about making sure that it gets down their supply chains to the level that aboriginal companies can begin to feed into the system. They measure it. They can produce reports on it. To Dawn's point, we would really like to see the federal government start to do more to give teeth to their procurement projects, initiatives, and policies, as well as to measure the outcomes of those policies. I think that there's some great stuff in place, but it's just not being measured.

[Wayne Garnons-Williams]

I support Max's concept. Intellectual property must not be confused with traditional knowledge. Right now, we have no legislation protecting traditional knowledge and it's being confused with intellectual property.

Here is a quick little synopsis of the difference.

Intellectual property, as you know, protects an individual or an entity for a specific period of time for a product that they've developed. The sweat equity and all the capital that went into that, they get a chance to make their money back, so it's a specific individual or organization for a specific period of time for a specific product.

In comparison, with respect to traditional knowledge, there is no specific person. It started from time immemorial and there is no end. It goes on for perpetuity and it's owned collectively by the nation. I use the example of the Cowichan sweater. There have been various attempts to copy the Cowichan sweater through various companies internationally. It's the capacity for the Cowichan people to protect their property right in that traditional knowledge because it's not just the sweater and it's not just the design, but it's the stories behind it. It's the lore and the legends that go with each of those patterns, so traditional knowledge means a lot to indigenous people.

[Dawn Madahbee Leach]

I just want to say one quick thing on this. I know it's going to be difficult to get this chapter into the NAFTA agreement, but at least I think there needs to be some kind of acknowledgement about UNDRIP. You might not have a full, complete chapter about indigenous people, but I think it's so important that we have something in there that acknowledges this. It's global acceptance and I think it's so important that Canada push forward with that, as a commitment that it's been making to indigenous people here.

[The Chair, Liberal, Mark Eyking]

Thank you.

We're going to move over to the NDP now. Madam Ramsey, you have the floor for five minutes. Go ahead, please.

[Tracey Ramsey, NDP, Essex, ON]

Thank you, Chair, and thank you to all of you.

That's actually an excellent segue into what I really did want to ask you. The work of my colleague, Romeo Saganash, and his private member's bill would ensure the laws of Canada actively respect the government's obligation to obtain free, prior, and informed consent and respect the human rights of indigenous people.

In your opinion, would adopting Mr. Saganash's bill help to further respect international obligations with respect to indigenous people?

[Dawn Madahbee Leach]

Absolutely. He's an individual who's worked so hard on this. He has a complete understanding of all of the issues internationally. I'm so happy that Canada has finally stepped up to endorse this. This has to be part of everything that we do in any kind of Canadian law going forward. I think it's so critical. It makes sense. When you read that declaration, everything in there is so important.

Having that type of support, or reference at least, in an international document like this is going to be really key going forward. That's the kind of role that Canada can play in the world today.

[Tracey Ramsey, NDP, Essex, ON]

My question, as a follow-up, is to you, Mr. Garnons-Williams. How would the implementation of UNDRIP and its full adoption by Canada help to protect intellectual property rights and the traditional knowledge that you spoke of?

[Wayne Garnons-Williams]

The problem with UNDRIP is that it's only a declaration, and as you all know, declarations are non-biding. It's the goodwill of each of the signatories to follow the declaration or choose not to, and the way they implement it or choose not to implement it is discretionary.

There's an argument out there that UNDRIP may be in the field now because these are things that are taken for granted as being considered customary international law. If it's customary international law and determined to be so by an international court or a domestic court, then it's enforceable. If it's just declaratory, then it's discretionary.

To answer your question with respect to traditional knowledge, it's a matter of putting teeth in the bill. Make it real; don't make it discretionary.

[Tracey Ramsey, NDP, Essex, ON]

Make it enforceable.

My colleague asked, what if we're unable to get a chapter? But, first of all, do you feel that indigenous people are at the table as an equal partner in this negotiation? Where do you see opportunities coming out of this chapter, and what would you like to see inside the chapter?

I'm always an optimist, so let's assume we have the chapter, and then there is also the question of whether you feel you're there as an equal partner.

[Max Skudra]

Why not? What we'd like to see within the chapter is more of what we've been talking about a bit already.

Some of the really key things that we would like to see are proactive tools around procurement and improving procurement in the public process.

First nations communities will often create economic development corporations that are first nations, Inuit, or Métis companies that represent their community. We need to make sure that those are protected from any SOE terms in NAFTA. We'd like to make sure that there is as great a freedom of movement of people and businesses for aboriginal companies as possible. Also we'd like to see, I guess, a recognition of the environment for aboriginal peoples in Canada today and an increased ability for inter-community trade.

[Dawn Madahbee Leach]

I don't think we're there as equal partners today, and I think that can be improved.

I can tell you that there are many capable indigenous people who could help write that chapter. We could put the specifics together. I can think of a group of people right now from across the country who would do a great job in putting together the chapter for you, with all the details that are needed. I've read all of the input that's been provided by indigenous people today and I know that there are some great solutions and ideas that we could put forward in working on that.

[Wayne Garnons-Williams]

From my perspective, I see inter-tribal trade as something that must be protected and enhanced. I see a system in which ideally a NAFTA chapter would have an inter-tribal trade option or a structure that allows, for example, for American Indians and Canadian first nations or Métis or Inuit to negotiate something amongst themselves that's protected and enshrined, so that there's full economic sovereignty of the tribes to negotiate their own trade apparatus by using the NAFTA aboriginal chapter as a mechanism to negotiate something that's a win-win for them.

[Max Skudra]

Just to get to your point in your first question, I think what you've seen with this round of NAFTA negotiations is a really impressive crack at engaging indigenous peoples. Having the national chief be so involved, and the civil service, as well as this, is great. It's a great starting point, with I hope some great results. We don't know yet. We'll see, but we're very optimistic. I am at least.

What is complicated is the specificity of the discussion. Wayne is a lawyer with a lot of experience in the civil service, so he's uniquely capable of commenting, but I think what we'd like to see is more—more opportunities and as well more resources around putting these conversations together.

To speak to Dawn's point, it's a very complicated technical subject to provide input on. There are many qualified people who could do it, but to create the formats, the venues, the vehicles for indigenous people to work together to provide that input is something we would really like to see.

[The Chair, Liberal, Mark Eyking]

We're going way over, but the dialogue is so good, do you want to....

[Wayne Garnons-Williams]

There's a core matter of concern with respect to this. Granted, Global Affairs is doing a great job of doing consultations with stakeholder groups and with rights holder groups as best they can, but there's a problem with the rights holder groups and the federal obligation. That is when we go back to the principles of what consultation is all about, and we don't have to go farther than read the Supreme Court of Canada cases of Delgamuukw and Tsilhqot'in to understand what is consultation and what is not.

I know we have tight timelines, where there are 11 days between each round, but 11 days between each round does not in my opinion provide full, frank, fair, and meaningful consultation with rights holders. It's fraught with danger because what happens is that you negotiate something and think you've done your consultation, but there are problems all the way with rights holders saying, “Wait, we don't have enough time to review this. This is too complicated. We have to get people in to review this complicated trade stuff.”

My concern here—and I know there's no control over the timeline—is that 11 days between rounds is not a lot of time for a full and meaningful consultation with the rights holders.

[The Chair, Liberal, Mark Eyking]

I have a quick question, and maybe Wayne could answer it for me. We've recently been down to Washington, and we met the committee that's similar to ours, the ways and means committee, which is dealing with this. It's a little different, but doing the same thing. If I had known what I know now, I would have asked them how closely the first nations people in the United States are working with their trade committee and negotiators. Does even Mexico have its indigenous people working on this? We know we are, to a certain extent.

Often, as our committees travel and hear from witnesses, there are a lot of farmers from here dealing with farmers down in the United States who are working behind the scenes. I'm just wondering, and it might be a long question, whether you are working with first nations people in Mexico and the United States, so that they're giving inputs similar to yours.

[Wayne Garnons-Williams]

Yes. I received a note on September 14 of this year from the National Congress of American Indians, drafted by their executive director, Jacqueline Pata. She wanted to let me know that their organization, a national organization for American Indians, supports the inclusion of an indigenous chapter in a modernized North American free trade agreement. They're aware of it. They're supportive of the efforts by Canada to introduce it, and they're lobbying their government prospectively to get them on side.

I was lucky enough to attend the National Congress of American Indian Tribal Unity Impact Day in Washington a week ago, and one of the senior Indian Affairs representatives was speaking. He used to be an indigenous law professor, and he drilled down the Trump administration's perspective and policy on indigenous rights. The phrase that pays—i.e., words make worlds, especially when we're looking at this stuff—with respect to the American policy here is “tribal economic sovereignty”. That is their position. From an argument standpoint, an indigenous chapter makes a good fit for that tribal economic sovereignty policy of the U.S. government, so I'm hopeful.

[The Chair, Liberal, Mark Eyking]

Thank you. Our committee is going to Mexico, and I think we're going to be asking them the same questions when we go down there.

We have time for one more slot. Ms. Ludwig, if you want to take up the last five minutes, go ahead.

[Karen Ludwig, Liberal, New Brunswick Southwest, NB]

Thank you, and thank you very much to the witnesses for your excellent presentations. I'll be fast on my questions, so I'll give you lots of time for your responses.

As the chair has mentioned, we have travelled extensively. We've had many witnesses talking about Canada-U.S. relations. Certainly, the piece that perhaps is missing is the cultural piece with indigenous peoples.

Max, you talked about opportunities. I'm very heartened to hear that more indigenous businesses are working abroad than the average Canadian company. Maybe you could all respond to this. Where do you see the opportunities for growth, and where do you see the challenges?

Do you see a model agreement that we could emulate, or is this something that we're starting fresh and we will, in fact, be the model? Please just start with those.

[Max Skudra]

Absolutely. We are a fairly optimistic organization, because we represent a lot of businesses and they are pretty optimistic, overall.

It's a really interesting environment right now, because there are so many innovative frameworks for success that we've seen across Canada, for example, Membertou in the east and the Atlantic region. You see private companies like the Bouchier group of companies partnering with Carillion, a major multinational out of the U.K., which now owns 48% of the Bouchier group of companies. You see, as I said, TransAlta, which made a deal with a local first nation to have power lines go across their community, and then, instead of paying them a small amount of money every year in perpetuity, it bundled that money, took it to the bond market, and was able to come back with enough money for the community to buy into an equity position in the project.

I think there is no lack of imagination on the business side. It's not quite one-size-fits-all. There are similar problems, absolutely, but there are a number of solutions around partnerships, procurement, and financing.

A few of the highlights would be reducing some of the lingering restrictions imposed by the Indian Act on business on reserve; ensuring there is robust access to procurement policies, as well as support for small businesses to act to go through those processes, which can be quite complicated; and increasing support for financing, particularly through AFIs, aboriginal financial institutions. I think those would be some of the highlights.

[Karen Ludwig, Liberal, New Brunswick Southwest, NB]

I would quickly add to that. My question for Dawn would be about looking at women. I've sat on a couple of different committees, and we've heard from so many witnesses about the economic security of women and the challenges to getting financing.

Is there a similar situation among first nations? How do we create a stronger people-to-people opportunity and integrated supply chains?