International Trade Committee on Feb. 20th, 2020

[Simon-Pierre Savard-Tremblay, Bloc, Saint-Hyacinthe—Bagot, QC]

Thank you to everyone for being here with us.

My question is for the representatives of the Assembly of First Nations, Ms. Whiteduck and Ms. Schwartz.

First of all, let me digress for a moment. We are currently in the midst of a crisis in which many prejudices against the First Nations are being propagated. I want to say that this is unacceptable. I hope that, together, we will be able to dispel them in due course. There have been some slip-ups in this matter; we must condemn them without qualification. All nations must speak to each other as people to people with all due dignity.

My question is about the process surrounding the negotiations. There is still a great deal of opacity around that, a lack of transparency perhaps. You talked about the fact that first nations always have to be consulted in the process of negotiating a trade agreement.

Do you feel that you have been properly consulted on this?

[Risa Schwartz]

Previously, consultation was definitely not adequate. With NAFTA and other trade agreements in the past, there was no consultation with first nations. Consultation is probably not the best word to use. It's engagement. When we're talking about consultation, we're talking about consultation pursuant to the Constitution and the duty to consult not being met. What we're talking about now is engagement with national organizations such as the Assembly of First Nations, as well as Métis and Inuit organizations and some rights holders through modern treaties.

Certainly the government, in the past couple of years, and especially with CUSMA, has put an increased emphasis on engagement with first nations, but there is still more work to do. Part of our presentation today is to discuss moving beyond engagement, which happens outside of the room and happens—sometimes after decisions are made and sometimes before—through an indigenous working group.

What we're talking about is participation in the room and bringing first nations to the table. If we're going to have indigenous chapters in future trade agreements, we need to have first nation negotiators. Then we're not talking about engagement or consultation. We're talking about participation, and participation is more in line with the UN Declaration on the Rights of Indigenous Peoples.

As the government is looking toward implementing the United Nations Declaration on the Rights of Indigenous Peoples, we'd urge participation in decision-making so that there's true decision-making being done with first nations about matters that implicate and affect their rights through their treaties and inherent rights.

[Simon-Pierre Savard-Tremblay, Bloc, Saint-Hyacinthe—Bagot, QC]

All right. Of course, you're generally speaking on behalf of first nations, but in terms of defining future agreements, many groups and organizations feel that there should be more dialogue with civil society. We're talking about consultations, but you prefer to talk about mobilization, which I have no problem with.

Have you thought of a formula that could promote ongoing dialogue? I'm not talking about simply keeping communities and groups informed of developments, but rather involving them in the definition of these agreements.

[Risa Schwartz]

I think there's a dual answer to that. The government has also been doing stakeholder engagement, and we've participated in that as well with other stakeholders. I think the stakeholder engagement that the Government of Canada has done for CUSMA has been excellent, with much more engagement with all parts of society and many phone calls and many opportunities to give input. I'm sure some of the gentlemen at this table could talk to that as well. There are many different opportunities there.

When we're talking about first nations, we're talking about rights that are impacting treaties, so we need to move beyond that engagement. There was certainly more engagement with the first nation organizations and some other academics and members of the business community who were able to participate through this indigenous working group.

However, no, it's not enough. The national chief has been advocating quite strongly for participation in decision-making and for being at the negotiation table, for being in the rooms where decisions are being made, because that leads to better decisions and creates atmospheres for economic stability as well.

[Simon-Pierre Savard-Tremblay, Bloc, Saint-Hyacinthe—Bagot, QC]

My question is for Mr. Herman, who is in Toronto.

With regard to the definition in the former NAFTA, you talked about a process that does not necessarily require the treaty to be reopened. It's a matter of changing certain aspects by the band in order to change parts of the treaty, without having to reopen the actual negotiations. You mentioned an exchange of letters.

Could you tell us more about this process?

[The Chair, Liberal, Judy Sgro]

Answer very briefly, Mr. Herman.

[Lawrence Herman]

In the NAFTA, there was an understanding that certain parts of the agreement didn't cover environment and labour, so the three governments decided they would have an exchange of letters outside the legal framework of the agreement to establish two commissions: one on labour and one on environment. That was agreed to by the three governments before the NAFTA was put to their respective parliaments.

[The Chair, Liberal, Judy Sgro]

Thank you very much, Mr. Herman.

Mr. Blaikie.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Thank you very much.

I want to start by saying thank you to everybody who has appeared today and has shared their thoughts.

I want to direct my first question to our guests from the Assembly of First Nations and first of all recognize that Canada is in some extraordinary circumstances right now, I think in part because the federal government has done a bad job of recognizing indigenous rights and title and does not have the kind of clarity we need to be able to move forward. Not just section 35, but also treaties and Canada's commitment to the United Nations Declaration on the Rights of Indigenous Peoples, are foundational documents for Canada.

It seems odd. We don't normally need clauses in agreements to say that the agreements can't override our Constitution. I'm just wondering how we can go about ensuring that these foundational documents really are protected and that it's clear something like a trade agreement can't take precedence over the fundamental legal framework and understanding between Canada and the first peoples.

You have talked a bit about the addition of a non-derogation clause to the legislation. I am curious to know how that would work and how that interacts with article 32.5 of the agreement, which I know only really talks about section 35 and self-governance agreements. It doesn't talk about UNDRIP, and it doesn't mention treaties either.

[Risa Schwartz]

Again, I'll answer the first part of the question first, but thank you very much for that question.

A lot of legislation does include non-derogation clauses. In fact, I believe it was a few a years ago that the Senate subcommittee looking at aboriginal issues recommended that all Canadian legislation include a non-derogation clause, across the board. That hasn't been implemented yet, but that was definitely a recommendation.

Because of article 32.5, which does in the agreement itself protect indigenous rights, it is important that it's not just CUSMA that has this protection but also the bill, because this bill will be changing Canadian laws and also creating policies to implement CUSMA. As we work with the new bill, we also should be aware that it might impact inherent or treaty rights. That's why there's the importance of having the non-derogation clause in the agreement and also in the implementing legislation.

Some may ask why it is important that you can't override the Constitution. You've made a comment on that, and I definitely agree, but I want to note that there is already a section in the bill as it stands about water. It clarifies that nothing in the agreement harms our “natural...water”. Whoever drafted this bill made the decision that it was important to clarify that our natural water is not impacted by the CUSMA—I agree to that as well—but there already is a clarification clause that I would say potentially isn't necessary. CUSMA itself says that.

Therefore, if it is important to clarify that our water isn't going to be impacted, it is also very important to clarify that the inherent rights of indigenous peoples are not going to be harmed. It's similar. You can't really say that the clause is unnecessary and then put in another clause that is also unnecessary. I would argue that both are necessary, for the same reason. We want to be certain that our water is protected. We also want to be certain that section 35 rights are protected in CUSMA but also in the implementation bill.

That is why we've brought forward this proposal.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Right on. Thank you very much.

I have a further question on that. I am curious. We know that article 32.5 doesn't mention UNDRIP. Throughout the engagement process, did the government tell you at any point that it was something they were asking for that the other parties refused? Do you have anything you can share in terms of the process and what we were advocating for, as opposed to what we don't have, maybe because our government never asked?

[Risa Schwartz]

Although article 32.5 doesn't specifically mention the UN Declaration on the Rights of Indigenous Peoples—and certainly this is something that the Assembly of First Nations, other indigenous groups and peoples were saying and continue to say is very important to have integrated into the agreement—there is, in the footnote, some language or text that allows for some flexibility and I think extends the exception beyond section 35.

The footnote says, “For greater certainty, for Canada the legal obligations include those recognized and affirmed by section 35 of the Constitution...or those set out in self-government agreements between”. That's the footnote that clarifies it for Canada, but the actual article talks about “legal obligations”.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

We've heard here on a couple of occasions that there may be things that we don't have that the government didn't ask for because they were fearful that the U.S. might get upset that Canada was asking for something more.

Did the government tell you at any point that they had asked for the inclusion of UNDRIP and that it was the U.S. or Mexico that said no?

[Risa Schwartz]

Not specifically, we didn't get into those conversations, but I do know that the government did put forward a draft trade and indigenous peoples chapter that did include the United Nations Declaration on the Rights of Indigenous Peoples. There was an attempt, and that chapter ultimately wasn't accepted. I'm not sure why. We weren't privy to that, but the government did move forward with a proposal.

[The Chair, Liberal, Judy Sgro]

Thank you very much.

We move on to Mr. Carrie.

[Colin Carrie, Conservative, Oshawa, ON]

Thank you very much, Madam Chair.

I'd like to start off with the Assembly of First Nations.

First, meegwetch. Thank you for being here.

I was wondering if you could help the committee. We've been trying to get information in regard to economic impact studies. I was wondering if the government has shared any economic impact studies with you on how it would concern indigenous people and indigenous-owned businesses in Canada, or if you've done your own and you're able to share that with us.

[Judy Whiteduck]

Briefly, we don't have an economic impact study at the Assembly of First Nations related to CUSMA and its implementation. There's definitely a need for one. The Government of Canada has not shared one with us, either. It is work that needs to happen and, as per some of our earlier comments, we see that there is a certain amount of work that needs to be part of the path forward. This would definitely be part of that.

[Colin Carrie, Conservative, Oshawa, ON]

We agree with you, and thank you very much for that. We will be asking over and over again so that all Canadians have that material.

With the same thing, I'm going to move over to the Canadian Manufacturers & Exporters.

First of all, thank you for all your work on this agreement, because what you said is very true. We're hearing over and over again that having this agreement is certainly much better than not having the agreement, so we're all committed to getting it passed and implemented to give certainty to business.

You highlighted the competitiveness chapter. I think it's chapter 26. I know with our government we were really moving towards convergence of regulations and harmonization, and we are hearing from your members. One of your members yesterday, for example, mentioned how, with the buy American exemption, we had an opportunity to leverage with this agreement and apparently it wasn't even brought up. With the softwood lumber agreement, we had a manufacturer earlier, a first nations manufacturer.... Again, we have no conclusion there.

We now have a more managed trade agreement versus competitive, especially with the auto industry. Mayor Dilkens brought up the importance of that and how the agreement is not perfect. Sadly in Oshawa—he also brought up Oshawa—it wasn't enough to save our assembly plant. There is a lot of concern moving forward.

We were moving towards convergence of regulations. The current government seems to be moving into a situation where we're having very unique Canadian regulations and costs. We've heard even today from Mr. Blydorp about the carbon tax and the uncertainty of how far that's going to be going up. Our transportation system, just-in-time delivery....

I was wondering, Mr. Arcand, when we're talking about investment in Canada, have you done any first economic impact studies you can share with us? Also, could you point out what in this agreement would encourage a large investor such as General Motors or Chrysler to make that investment in Canada versus the United States?

[Alan Arcand, Chief Economist, Canadian Manufacturers & Exporters]

Thank you for your question.

I'm sorry; we don't have any economic impact numbers we can share with you.

To echo my colleague's comments from a few moments ago with regard to your question about promoting investment in Canada, the big issue to us is the uncertainty that it engendered, the fact that we were going through this negotiating process with our largest trading partner. The concern of our members and our main concern was to get past this uncertainty and get CUSMA ratified.

Obviously the manufacturing sector still has challenges. Investment in manufacturing has been weak for a number of years, including the past couple. Some of that is related to trade uncertainty. Even if we do ratify CUSMA, there are still a number of challenges that we need to address in manufacturing to promote investment, but this is just one hurdle that we can remove and then we can move on to other, bigger issues.

[Colin Carrie, Conservative, Oshawa, ON]

Thank you for that.

As I said, we're looking for these economic impact studies because we think they're very important. What are you doing now for your members who are really concerned? They're happy we're moving forward with this agreement, but they're really not very happy—as Mr. Blydorp was saying—that we have these unique costs in Canada and that, instead of moving towards this North American competitiveness bloc as you mentioned, through chapter 26, we're signing an agreement to say there is going to be more convergence and harmonization, but the actions of the government are the opposite.

Are you making your members' voices heard with this government? Yes, we'll get this deal done, but what about communities like mine in Oshawa that need to have those large investments? Are you moving these other issues forward?

[Matthew Poirier]

Yes, certainly, and you mentioned—

[The Chair, Liberal, Judy Sgro]

I'm sorry, Mr. Poirier, but there's no time to answer. Mr. Carrie took his full five minutes. Maybe you can talk to the member a bit later on.

[Colin Carrie, Conservative, Oshawa, ON]

I'll talk to you after.

[The Chair, Liberal, Judy Sgro]

Mr. Sarai.

[Randeep Sarai, Liberal, Surrey Centre, BC]

Thank you, Madam Chair.

I want to first correct His Worship Mayor Dilkens of Windsor. Surrey is the largest city that borders the United States. It has a population of 500,000-plus people, so as much as you're proud of Windsor, we're also very proud of our city, and a lot of our trade is—like Windsor's—heavily reliant on the U.S., whether it's our softwood lumber, our logistics or other manufacturing. I just wanted to bring that to your attention.

I want to ask you though, how do you think...? You're very obviously supportive of this agreement. It promotes trade and growth in your region. How does the certainty affect planning for the future and for growth in your area for a city such as yours or for other border cities like my city of Surrey?