Indigenous and Northern Affairs committee  I think I've already spoken to how clarification would be very desirable. As it stands, it's open to some to understand FPIC, in particular, in one way, and others to understand it in others. The last thing we need is conflict over understandings of what UNDRIP stands for and what the article that provides for FPIC stands for.

Indigenous and Northern Affairs committee  Others may have more to say, but I agree with them.

Indigenous and Northern Affairs committee  Frankly I don't see any difference. It depends on who supports it, and I gather that at second reading the government supported it. I would offer an observation that it's a bit unusual to enact legislation calling for other legislation to be enacted. Frankly, unless it's constitutional, I don't see how that can be enforced, but it delivers a message that the author and the proponent of the bill, and presumably the government, want to get out there, and what's wrong with that?

Indigenous and Northern Affairs committee  I guess you have to start somewhere.

Indigenous and Northern Affairs committee  I think the emphasis in the declaration is on seeking consent, not requiring consent. Who could contend that this is not a good idea?

Indigenous and Northern Affairs committee  I'll never be called upon to adjudicate the matter, so it's probably fairly safe for me to say that it's pretty clear to me, from looking at UNDRIP and the movement toward implementation, whether that be legislative or simply by policy, that Canadian common law is not likely to be disrupted by it.

Indigenous and Northern Affairs committee  Well, I agree with everything that Professors Turpel-Lafond and Borrows have said about positioning UNDRIP in relation to enactments that have some bearing on indigenous interests, including the provisions that go to the social conditions. It clearly is a positive statement, albeit some might say it's unnecessary because Canadian law is such that people should not suffer discrimination based on race.

Indigenous and Northern Affairs committee  First, does the bill obligate the government to introduce legislation purporting to fully establish in law the title of indigenous nations to historically occupied lands? Second, does it matter in the implementation of the promise of the bill whether or not a recognized indigenous group can meet the evidentiary burden, as found in Tsilhqot'in, for proof of title?

Indigenous and Northern Affairs committee  I've had the experience. Thank you, Madam Chairperson, and honourable members for this opportunity to speak on Bill C-262. I am a justice of the B.C. Supreme Court, and since 2009, chairperson of the Specific Claims Tribunal Canada. The latter is an independent tribunal with a mandate to adjudicate certain categories of historical claims of what are described in the act as “first nations”.

Indigenous and Northern Affairs committee  My presentation is an attempt to describe in neutral language, and based only on conclusive findings of the Supreme Court of Canada, the prevailing legal context in which we see the bill introduced. I'd like to identify questions about the intended effect of the bill with respect to the indigenous rights set out in the declaration, and to make an observation or two about the direction provided by the Supreme Court with respect to contemporary treaty-making and any correspondence it may have with article 27 of the declaration.

Indigenous and Northern Affairs committee  It's hard to say. Most of my experience as a lawyer and as a judge is in British Columbia. I actually live there sometimes, except when I'm in beautiful Ottawa. I don't know how many groups would be aggregated to pursue treaty negotiations in British Columbia, but some think it's around 23.

Indigenous and Northern Affairs committee  Yes.

Indigenous and Northern Affairs committee  The problem with timelines is, what if they don't get met? Where do you go then? The Nisga'a treaty took 25 years. To my mind, the issue is, how do treaty negotiations get moved along when they're policy based and one party to the negotiation created the policy? That party has all the power, and that's not good.

Indigenous and Northern Affairs committee  I suppose if it helps the discussion to call it “racist”, then call it racist. I don't see how it helps the discussion. For one thing, I don't see why demonizing non-indigenous people contributes anything to the discussion, which, of course, is happening. I think what we really need to do is get down to work and find real solutions to these problems and stop calling each other names.

Indigenous and Northern Affairs committee  What kind of legislation? If we're looking at implementing recognition of indigenous groups and their territories, I don't think it's for government to do that legislatively. I think the indigenous groups have to define themselves, but there needs to be some connection to that collectivity that at common law could have a claim to be an indigenous nation.