Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 56 - Evidence - June 4, 2019 (afternoon meeting)
OTTAWA, Tuesday, June 4, 2019
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-91, An Act respecting Indigenous languages, met this day at 3:33 p.m. to give clause-by-clause consideration to the bill; and, in camera, to study the matter of those elements contained in Division 25 of Part 4 of Bill C-97, An Act to implement certain provisions of the budget tabled in Parliament on March 19, 2019 and other measures (consideration of a draft report).
Senator Lillian Eva Dyck (Chair) in the chair.
(The committee continued in camera.)
(The committee resumed in public.)
The Chair: This afternoon, we will proceed to clause-by-clause consideration of Bill C-91, but before we do so I would like to advise members that we have officials from the Department of Heritage Canada at the table to help answer technical questions, if need be, as we go through the bill clause by clause. I would also like to remind senators of a number of points regarding the process.
As chair, I will call each clause successively in the order in which they appear in the bill.
In terms of the mechanics of the process, I wish to remind senators that when more than one amendment is proposed to be moved in a clause, amendments should be proposed in the order of the lines of a clause.
If at any point a senator is not clear where we are in the process, please ask for clarification. I want to ensure that at all times we all have the same understanding of where we are in the process.
If a senator is opposed to an entire clause, I would remind you that in committee the proper process is not to move a motion to delete the entire clause but, rather, to vote against the clause as standing as part of the bill.
I would also remind senators that some amendments that are moved may have consequential effect on other parts of the bill. Should this be the case, it would be useful to this process if a senator moving an amendment identified to the committee other clauses in this bill where this amendment could have an effect. Otherwise, it would be very difficult for members of the committee to remain consistent in their decision making.
Staff will endeavour to keep track of the place where subsequent amendments need to be moved and will draw attention to them. Because no notice is required to move amendments, there can, of course, have been no preliminary analysis of the amendments to establish which one may be of consequence to others and which may be contradictory.
If committee members ever have any questions about the process or about the propriety of anything occurring, they can certainly raise a point of order. As chair, I will listen to argument, decide when there has been sufficient discussion of a matter or order and make a ruling.
The committee is the ultimate master of its business within the bounds established by the Senate and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.
As chair, I will do my utmost to ensure that all senators wishing to speak have the opportunity to do so. For this, however, I will depend upon your cooperation and I ask all of you to consider other senators and to keep your remarks to the point and as brief as possible.
Finally, I wish to remind senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote which, obviously, provides unambiguous results. Senators are aware that any tied vote negates the motion in question.
Are there any questions on any of the above?
Senator Sinclair: We have a vote at 4:53, so we need leave here 15 minutes ahead of time. Would that be appropriate?
The Chair: Ten or fifteen minutes, yes.
Senator Sinclair: I am not a 10-minute walker over to the building.
The Chair: That would make it 4:38. We will suspend at 4:38 so that we can go back to the chamber for a vote.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill C-91, An Act respecting Indigenous languages?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Carried.
With leave, is it agreed to group clauses for which we have no amendments identified in the road map?
Hon. Senators: Agreed.
The Chair: Carried.
Next, we have an amendment in clause 2, on page 3, to which Senator Tannas will speak.
Senator Tannas: Very briefly, this relates to representations we had from the friendship centres. Although they deliver language services in many of their locations and in different situations, they were fearful that the description of Indigenous organization could potentially be used to exclude them.
The Chair: Excuse me, I think you should probably read the motion first.
Senator Tannas: I move:
That Bill C-91 be amended in clause 2, on page 3, by replacing lines 24 to 26 with the following:
“(a) that represents the interests of an Indigenous group and its members;
(b) other than in section 45, that is specialized in Indigenous languages; or
The language t(c) that delivers services to Indigenous people where they reside, including friendship centres and other Indigenous community-based organizations. (organisme autochtone)”.
The language that we put together here is more inclusive than the current definition. We heard some undercurrents here and there about people who were not part of the consultation/co-development process. They felt that perhaps some of the definitions were narrow and could exclude, specifically, friendship centres from the definitions.
By including the friendship centres, we are providing, although not saying, the potential for others to be read in on the basis that they deliver services.
The Chair: Are there any questions?
Senator LaBoucane-Benson: I like this change. I like that it is itemized (a), (b) and (c). The only thing I can’t agree with is singling out one service provider, which is friendship centres, when there are many different service providers across the country that are not necessarily friendship centres.
If you have, “that deliver services to Indigenous people where they reside,” it includes friendship centres and other community-based, grassroots organizations that are not friendship centres. It singles out one group. Having worked in the field in a community for 23 years, there are many different organizations that are grassroots and Indigenous owned.
If we took out the last three words of (c), it would be a positive change. I don’t know how people feel about that.
The Chair: Are there any other comments?
Senator Tannas: I think it’s a step ahead.
Senator Patterson: We heard from the Association of National Friendship Centres. They did say that they hadn’t been consulted. They did say that they were delivering Indigenous language programs. They are represented everywhere in the country.
I don’t think including them disqualifies the many other agencies there are, but it gives them some credence and credibility that we all believe they should have. I think “including” means “not limited to.” It does not mean that there are not other possibilities. I just feel these folks are left out too often. They need more recognition from our committee, so I am okay with the wording as it is.
I understand what you’re saying, Senator LaBoucane-Benson. By giving them a little shout-out here, which is what they asked for when they came to the committee, I think it is good.
Senator Francis: I want to clarify for the record that there are no friendship centres in Prince Edward Island, so they are not everywhere in Canada.
Senator Coyle: I understand the suggestion of Senator LaBoucane-Benson, but it is not a bad idea to mention friendship centres. Perhaps one way of accommodating both points is by saying, “including friendship centres and other Indigenous civil society organizations” because that was a point we heard as well.
The concern was that it would be captured by governments, Indigenous governments, and they wanted to make sure that Indigenous civil society organizations were included. That was a possible way of including friendship centres and others. That was a possible way of doing it.
Senator McCallum: Senator Coyle makes a good point. If you are going to include friendship centres, you need to think of Metis settlements and all those unique organizations that haven’t had the ability to get funds. If you take her wording, it will include many other organizations that we may not even know about.
Senator Sinclair: The concern I have is whether or not this will result in administrative difficulties for the department. I would like to hear officials from the department as to what they think of this proposal.
Hélène Laurendeau, Deputy Minister, Canadian Heritage: It was meant to be fairly large in terms of definition, so being specific about capturing organizations that deliver services does not go against the spirit of the definition.
The only preoccupation I would have would be the use of the term, “other civil society organizations.” That may introduce another concept that is not defined anywhere. I would be careful about that, but that’s something to consider.
The definition per se was meant to capture the organizations you are describing. From that perspective, it is not something that would be overly difficult for the department to administer.
The Chair: Would the phrase “community-based” or “community-based, grassroots” be a term that is technically acceptable?
Ms. Laurendeau: It would probably be more precise in the Indigenous context because it would actually refer to community organizations, which communities are better known than civil society that would probably call for some form of definition.
Senator LaBoucane-Benson: Following up on what Senator Dyck said, I agree that community-based may be better. I am thinking that we need to say, “Indigenous community-based” or “Indigenous-owned community base.”
Senator Christmas: The other testimony that rings in my ear was that of Elder Claudette Commanda. She specifically mentioned one of the overlooked deliverers of language services was the cultural education centres. Yes, I fully agree the friendship centres need to be included either directly or indirectly. That’s important. I also think the culture education centres also deliver language services as well.
It will probably make it more difficult for those who are trying to think of words, but I want to make sure that the right Indigenous organizations that deliver these services are included.
Senator Coyle: I am not going to nitpick. I am fine, although community based is actually narrower than civil society organizations. Civil society organizations include community-based organizations. It is a commonly used term in Canada and internationally. It is very well understood. We have heard the term used by representatives from the Native Women’s Association and the friendship centres.
I don’t care, just so long as we get the broader point across to make sure that Indigenous organizations are included. I was trying not to use non-governmental organization language. I was trying to use positive language. The positive language on non-governmental is more broadly civil society. I am fine if you want to use, “community-based.” To me it’s a subset of civil society, so that’s fine.
Senator Francis: I just want to make a comment. It could say, “including but not limited to” as an option as well.
Senator Sinclair: “Including” means “not limited to,” from a legal perspective.
The Chair: We need to make a decision on which route we are going.
Senator Sinclair: For those who may be interested in knowing, in the bill the phrase “Indigenous organizations” is used 16 times, so it would impact those particular provisions.
The Chair: Do we have an agreement on the wording? I sense that people want to amend it. If we amend it, we have to come back to it because we will need to have it translated into French.
In terms of the wording I am looking to you, Senator Tannas.
Senator Sinclair: What wording?
Senator Tannas: We would say, “that deliver services to Indigenous people where they reside, including friendship centres and other Indigenous civil society organizations.”
The Chair: My impression was that “community-based” was more technically acceptable.
Senator McCallum: Could I say something about “community-based?” When we work in the field as health professionals, we work out on the reserves. We call that “community-based,” but we don’t have that in the city. It means you’re going out to the community, delivering services and coming back. The only term we use when we go to the reserves is, “community-based services.” I wanted to bring that up. It could be limiting. I’ve never heard it applied to city structures.
An Hon. Senator: Oh, yes, it is.
Senator LaBoucane-Benson: To me, civil society would include universities and larger organizations. The idea of an Indigenous “community-based organization” says to me Mother Earth’s Children’s Charter School. It says the friendship centres. It says the people providing other services such the Stan Daniels Healing Centre. Language should be a part of healing. I am hoping those are the people and the organizations we are talking about.
Senator Tannas: Are we saying that we would add, “including friendship centres and other Indigenous community-based organizations?” Is that where we are?
The Chair: Senators, is it agreed that we will stand this motion and come back to it once we have the translation?
Hon. Senators: Agreed.
The Chair: Thank you. It is agreed.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: We have a new clause on page 4.
Senator McCallum: I move:
That Bill C-91 be amended on page 4 by adding the following after line 11:
“3.1 In exercising any power, duty or function under this Act, the Minister, the Office or the Commissioner, as the case may be, must act in a manner that is consistent with the Government of Canada’s commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples.”.
I made my speech yesterday in the chamber on Bill C-69. I also mentioned this morning that The First Nations Summit had a bill in B.C. to implement the United Nations declaration by saying:
The Environmental Assessment Office is continued as an office of the government.
Under 2.1 it went on to say:
. . . supports reconciliation with Indigenous peoples in British Columbia by supporting the implementation of the United Nations Declaration on the Rights of Indigenous Peoples . . . .
(b) recognizing the inherent jurisdiction of Indigenous nations and their right to participate in decision making and matters that would affect their rights through representatives chosen by themselves.
(c) collaborating with Indigenous nations in relation to renewable projects, consistent with the United Nations Declaration on the Rights of Indigenous People and
(d) acknowledging Indigenous peoples rights recognized and affirmed by section 35 of the Constitution Act, 1982, in the course of assessments and decision making under this Act.
We spoke to the Grand Chief this morning. When he submitted his recommendation, he said that this act contained a number of important mechanisms to advance the overarching purpose and that it was working well. He also said that it only made sense to align the federal act with the new B.C. regime for predictability and clarity, and that it would make sense that the federal act be applied consistently with the law.
There is a province that has implemented the declaration. It’s working well for them, and they’re making progress in that relationship. That was brought to us. They supported moving the clause in Bill C-69.
I believe that when the government said they wanted to move ahead with reconciliation and implement the United Nations Declaration of the Rights of Indigenous Peoples, it was their intention to start working with this declaration to amend the wrongs that had happened in the past.
Senator Tannas: Senator McCallum, what you read out, is that what B.C. has incorporated? I didn’t hear anything about “must do” anything. It supported, but it didn’t actually have the kind of language I see here where it says, “must act in a manner that is consistent.”
I am wondering if there was another piece done in B.C. that was more forceful than what I heard you read out just now.
Senator McCallum: He said that this is what they have and that they are working very well. There is another section that brings up the United Nations declaration further down.
Senator Coyle: It is in the preamble.
The Chair: Do you have a copy of the bill that you could read out?
Senator McCallum: It is from B.C. That is what I read out at the beginning. It is under Part 2, Administration, Environmental Assessment Office. They make notification throughout that they include a lot of Indigenous consultation, but I think the Grand Chief made good points this morning.
The Chair: Are there any other questions or comments?
Senator Patterson: It is in the Preamble, where it says:
. . . the Government of Canada is committed to implementing the United Nations Declaration of the Rights of Indigenous Peoples, which affirms rights related to Indigenous languages . . . .
Are you saying that is not enough?
Senator McCallum: It is not enough. If you say it is in the Preamble, then what problem do you have to move it into another section?
Senator Patterson: I was wanting to know what is the meaning of:
. . . must act in a manner that is consistent with the Government of Canada’s commitment to implement the United Nations Declaration . . . .
What does that actually mean?
Senator McCallum: Just what it says:
. . . must act in a manner consistent with the Government of Canada’s commitment to implement the United Nations Declaration . . . .
Senator Patterson: In Article 16 of the UN declaration there is the right of Indigenous peoples to establish their own media. There is also something also about ensuring that “State-owned media duly reflect Indigenous cultural diversity.”
Article 14 says:
Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, . . .
Would you read your amendment as requiring the minister to fund media and schools based on Article 14 and Article 16?
Senator McCallum: We already have APTN, our Indigenous media. When we had meetings, a chief from B.C. had developed his own school and brought in land-based education. He did it using a provincial curriculum. They had their own curriculum, and they were graduating students who were very capable of entering university. That was one of our witnesses.
The Chair: We will have to break in about a minute. Senator Sinclair, did you want to make a comment before we break?
Senator Sinclair: Probably my comment will take more than a minute. It has to do with the premise of the question. If Senator Patterson doesn’t mind, we can continue this conversation when we return. I think we should break now.
The Chair: We will suspend.
(The committee suspended.)
(The committee resumed.)
The Chair: The meeting is reconvened.
We will continue on with the discussion on the amendment by Senator McCallum. Are there any other comments?
Senator McCallum: I actually wanted to make some more comments. May I?
The Chair: Yes.
Senator McCallum: In committee we heard that senators wanted a Canada-made solution. B.C. is a very good example of a Canada-made solution that is utilizing the United Nations declaration for Indigenous peoples.
The Human Rights Council of the United Nations General Assembly released its final study on Indigenous peoples and the right to participate in decision making called Report of the Expert Mechanism on the Rights of Indigenous Peoples. Under “Participation in decision-making mechanisms linked to State and non-State institutions and processes affecting indigenous peoples,” a section headed “Participation in hybrid systems of governance” gave the following example:
In Canada, at the centre of the Nunavut Land Claims Agreement of 1993 is lands and resources co-management boards that guarantee Inuit meaningful involvement and participation in decisions relating to the preservation and future development of lands . . . .
Canada negotiated land claims agreements with Indigenous peoples. It seems that the governance system within land claims agreements are further ahead of Canadian legislation when they look at making their own laws and doing the work that they need to do. They are already implementing some of the declarations.
If they can do that, then why isn’t Canada doing the same thing?
The Chair: I wonder if we could ask the officials if they have any comments on technicalities.
Ms. Laurendeau: With all respect to the committee, those are more than technicalities. This is quite a substantive amendment, I would daresay.
I haven’t had the benefit of hearing the witnesses at the other committees, so it would be difficult for me to comment further, other than to say this is a substantive change to the legislation.
Senator McCallum: I know the bill hasn’t passed. Whether it passes or not has no bearing on this because if it doesn’t pass and it stays in there, it will have a different interpretation than when it passes and it’s still in there.
The Chair: Which bill are you referring to? You’re confusing us by saying this bill hasn’t passed. Which bill?
Senator McCallum: Bill C-262 hasn’t passed. Whether or not it’s in there, it is going to have different interpretations. The interpretations will still deal with the human rights violations that are occurring.
The Chair: Senator Sinclair, you had a comment.
Senator Sinclair: Yes. It was in response to the question that Senator Patterson had posed to Senator McCallum on whether the insertion of this particular amendment would have an impact upon the government’s obligation to fund media. There may have been other references that were part of it as well.
I wanted to point out that nothing in the UN declaration requires the government to fund anything. The UN declaration is the requirement of the government to recognize certain rights and to legislate in recognition of those rights. I just wanted to point that out.
The Chair: Are senators ready for the question?
Hon. Senators: Question.
The Chair: All those in favour of the motion, please raise your hands. Those opposed to the motion.
Senator Patterson: On division.
The Chair: We have the translation of Senator Tannas’s amendment. I believe it is in front of you. Basically it is adding, “and other Indigenous community-based organizations.”
Are you ready for the question? All those in favour of the motion.
Senator Sinclair: I just want to check the French translation, please.
The Chair: All those in favour of the motion in amendment. All those opposed.
None opposed. The amendment carries.
Shall clause 2, as amended, carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the new clause 3.1 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Agreed.
On clause 5 at page 4 there is an amendment.
Senator Sinclair: I’ll be brave and actually call it a technical amendment. It has to do with the English phrase in the French version of legislation, so let me read the motion:
That Bill C-91, in Clause 5, be amended by replacing, in the French version, line 19 on page 4 with the following:
(i) évaluer la situation de diverses langues autoch-
Senator Patterson: Could Senator Sinclair tell us what is wrong with the French in the original version, please?
Senator Sinclair: Maybe I will ask the government representative to explain it. This is a government requested amendment, incidentally.
Senator Patterson: I know. I am just teasing you.
Senator Sinclair: From my interpretation of the French-language version, I think the French wording does not correctly match up with the English wording, but I might be wrong. Let’s see what the concern is here.
Ms. Laurendeau: I am trying to understand which amendment you’re talking about.
Senator Patterson: MS-5.4.
Ms. Laurendeau: It is because the word “distinct” is not in the right place. Actually, I will ask Louise Sénéchal to explain it because she is better than me. I made the mistake in the parliamentary committee, and we’re trying to correct that.
Louise Sénéchal, Executive Director and General Counsel, Legal Services, Canadian Heritage: It was not your fault. The French in the amendment, as it was made in the house, talks about the distinct nature of the status of the language, but the intention was to say in English that the assessment is of all distinctive Indigenous languages. That’s why we made the change.
[Translation]
“(i) évaluer la situation de diverses langues autoch-”
[English]
So it’s diverse or the variety of Indigenous languages.
Senator Sinclair: And there you are.
The Chair: Are we ready for the question? All those in favour.
Hon. Senators: Agreed.
The Chair: Agreed.
We have another amendment to clause 5, MS-5.5a.
Senator Sinclair: Let me move the amendment.
That Bill C-91 be amended in clause 5, on page 5, by replacing line 9 with the following:
“(d) establish measures to ensure the provision of ad-”.
Senator Coyle: So it is “ensure” instead of “facilitate,” right?
Senator Sinclair: Right now the provision reads:
. . . establish measures to facilitate the provision of adequate, sustainable and long-term funding . . . .
With this amendment it would read:
. . . establish measures to ensure the provision of adequate, sustainable and long-term funding . . . .
That is a government approved amendment, in my understanding. Am I wrong? If not, then I will explain it. It’s one that I worked on.
Ms. Laurendeau: You might want to do that.
Senator Sinclair: It was the fact that the original wording of the bill, senators, as you can see, used the word “facilitate” the provision of funding, whereas my assessment of this bill was that it would be stronger to say, “Establish measures to ensure the provision of . . . long-term funding”.
It’s a change in the emphasis from facilitating to providing, essentially.
The Chair: Are we ready for the question? All those in favour of the motion, please raise your hands.
Hon. Senators: Agreed.
The Chair: Agreed.
We have another amendment to clause 5, MS-5.5b.
Senator Sinclair: I move:
That Bill C-91 be amended in clause 5, on page 5, by replacing the lines 18 and 19 with the following:
“jurisdictions of Indigenous governing bodies;”.
If you look at clause 5, on page 5, lines 18 and 19, right now it reads:
“. . . jurisdictions of Indigenous governing bodies and of the provinces and territories;”
You can read the whole paragraph for yourself, but the intention is to delete the references to “provinces and territories.” At the beginning it reads:
. . . facilitate cooperation with provincial and territorial governments, Indigenous governments and other Indigenous governing bodies, Indigenous organizations and other entities in a manner consistent with the rights of Indigenous peoples and the powers and jurisdictions of Indigenous governing bodies . . . .
My view is that by keeping the reference to “the powers and jurisdictions of provinces and territories,” it would subjugate Indigenous rights to provincial powers. A forewarning to you is that this area has been the subject of some discussion between federal and provincial officials. We can ask the representatives in a minute. There is a concern on the part of the provinces of interfering with provincial jurisdiction, and a constitutional question has been raised.
My response to that is the Government of Canada has been legislating issues related to education and languages since 1867 or 1874 when the first Indian Act was created and subsequently expanded to the West. The government has been legislating in areas where provinces also have jurisdiction because of their authority over Indians and lands reserved for Indians under section 91(24) of the Constitution. My view of the Constitution is that the Government of Canada has the right to legislate in any area where it involves Indians and lands reserved for Indians.
I don’t see a constitutional problem. I do see a potential problem where we leave the jurisdiction of provinces and territories in the bill.
The Chair: Did you ask the officials to respond?
Senator Sinclair: Are there any questions or anything you want to say to this?
Ms. Laurendeau: I would only say that there is an issue where there are differences of views.
Senator Sinclair: I was correct, though, to say that this has been discussed with the provinces at some point.
Ms. Laurendeau: You’re correct in saying that the issue of division of power has been discussed with provinces, yes, informally.
Senator Sinclair: I don’t want to overstate it, but am I also correct in saying that the provinces don’t like the idea of the federal government legislating in an area such as education where they feel it’s their jurisdiction?
Ms. Laurendeau: I wouldn’t characterize it that way, but it was important that the bill was respectful of the division of power between provinces and territories and the rights of Indigenous people.
The Chair: There being no further comments, are we ready for the question?
All those in favour of the motion, please raise your hands.
Hon. Senators: Agreed.
The Chair: Agreed. Amendment carried.
Shall clause 5, as amended, carry?
Hon. Senators: Agreed.
The Chair: Agreed. The next amendment is by Senator Sinclair to clause 6.
Senator Sinclair: The motion I would make is:
That Bill C-91 be amended in clause 6, on page 5, but replacing line 33 with the following:
“Indigenous languages, including the right to communicate in the Indigenous language of their choice and the right not to be deprived of that right to communicate.”.
Right now the provision reads:
The Government of Canada recognizes that the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982 include rights related to Indigenous languages.
This would add the following phrase to the end of that clause:
“. . . including the right to communicate in the Indigenous language of their choice and the right not to be deprived of that right to communicate.”
The Chair: Do you want to provide a brief explanation?
Senator Sinclair: I thought I did.
The intention on my part in proposing the amendment is to make it very clear that the right Indigenous people have to their languages is an enforceable right and a right that needs to be respected in law. By including the reference to include the right to communicate in the language of their choice and the right not to be deprived of that right to communicate, it also takes it beyond merely a group right to an individual right.
Senator Patterson: You will tell me if it’s not appropriate, but I’d like to ask Senator Sinclair, if I may, as sponsor of the bill, if this bill has the agreement of the minister and the government.
Senator Sinclair: I can’t say that. The officials can respond if they wish to any concerns they have with that particular amendment. It was an issue I raised with the minister, but I cannot say that the minister agreed to it.
Senator Tannas: You may not be able to answer this, but could this be construed as almost bilingualism right there? Does this provide a right to show up at the airport and try to deal in your Indigenous language as a right? Does it go that far?
Senator Sinclair: No, I don’t think so. There is another amendment later on. Senator Patterson and I have had a discussion about language of service. This is an obligation imposed on the government. It essentially requires the government to recognize that the rights of Indigenous peoples include the right to communicate in their language and the right not to be deprived.
Had it existed as a right at the time, they wouldn’t have been able to do what they did in residential schools, for example, because of government action, not because of anyone else’s action.
Senator Tannas: Right.
Senator Sinclair: I am not sure one could argue the government recognition of the right. If it were to be an enforceable right against everybody, it would be easier to say that every Indigenous person in Canada has the right to communicate in the language of their choice and the right not to be deprived thereof. That would then make it enforceable as against everybody, but this now is an obligation that is being imposed upon the government with this amendment.
Senator Patterson might have some thoughts on this.
Senator Patterson: I think it’s a bold amendment, and more power to you.
Senator Sinclair: I did call you seductive at one of our meetings last week, so thank you for the return compliment.
Senator Patterson: Yes, you did. It’s better than being seductive, actually, or maybe not.
I have a question that I am wondering about. If an Indigenous language speaker who prefers to speak in their first language wished to communicate with a government department, say the Department of Indigenous Services, would this amendment give that Indigenous person the right to communicate in their Indigenous language of choice and the right not to be deprived of that right to communicate?
You said it’s an obligation on government. Would this require the government to provide an interpreter for such persons who choose to speak in their Indigenous language of choice?
Senator Sinclair: That is conceivable, yes.
Senator Patterson: Thank you for that.
Senator Sinclair: Are there any response from the officials?
Ms. Laurendeau: I would point out that from a scope standpoint, if you look at the purpose of the act, this arguably could be perceived as going beyond that. That’s what I would offer. I just wanted to point that out.
The Chair: Are we ready for the question? All those in favour of the motion, please raise your hands.
Senator Patterson: Agreed.
The Chair: Agreed. Motion carried.
Senator Patterson: We can say on division on that one.
The Chair: On division.
Senator Patterson: I mean I wish you well.
The Chair: Shall clause 6, as amended, carry?
Hon. Senators: Agreed.
The Chair: Agreed.
We now have an amendment from Senator Patterson.
Senator Patterson: Madam Chair, the amendment is:
That Bill C-91 be amended in clause 7, on page 6,
(a) by replacing line 1 with the following:
“7(1) The Minister must consult with a variety of Indigenous”; and
(b) by adding the following after line 6:
“(2) In this section, adequate and sustainable funding is determined having regard to the number of persons composing the Indigenous language population of an area, the particular characteristics of that population and the proportion of that population to the total population of that area.”.
That is the amendment.
The Chair: Yes, and then your explanation.
Senator Patterson: Madam Chair, the testimony of Claudette Commanda, executive director of the First Nations Confederacy of Cultural Education Centres, was referred to earlier. She lamented the lack of specificity with regard to funding in her appearance on April 3 when she said:
The bill does not contain the recognition of First Nation languages as the first or original languages. It does not contain a provision identifying the amount of funding to be invested into languages. It does not contain a provision on the protection of languages. It does not contain a provision on the protection of the funding. In essence, Bill C-91 does not contain a provision to compel the government to permanently fund Indigenous languages.
Colleagues, we heard time and again in studying this bill that there were concerns surrendering the vague funding provisions in this bill. Some may argue that subclause 5(d) clearly states that funding should be long term and used:
. . . for the reclamation, revitalization, maintenance and strengthening of Indigenous languages;
However, Tracey Herbert, Chief Executive Officer of First Peoples’ Cultural Council, who also appeared on April 3, was very clear that this language was not sufficient and went on to explain:
We keep on getting asked, do we have any idea what the commitment to provide adequate, sustainable, long-term funding means? The federal budget was released or March 19, and it states:
“To support the implementation of the proposed Indigenous Languages Act, Budget 2019 proposes to invest $333.7 million over the next five years, starting in 2019-20, with $115.7 million per year ongoing.”
I can tell you that this is not adequate funding to do the work required.
This committee’s excellent work and pre-study report resulted in a Royal Recommendation, so how do we define what is adequate and sustainable? I would suggest the way forward would be to use language similar to what exists within the Official Languages Act dealing with French and English so that as the government looks to establish funding levels they consider factors such as the number of persons composing the Indigenous language population of an area; the particular characteristics of that population, that is whether or not the spoken first language is an Indigenous language; and the proportion of that population to the total population of that area.
While this is not a distinctions-based approach to funding, it would serve regions like Inuit Nunangat well as they have a high concentration of Inuit living in each of the four regions, and Inuktitut is the first language of that majority population.
The least we can do is use wording that is from the Official Languages Act. If it is good enough for French and English speakers, we should put it in for Indigenous language speakers. It is criteria that will make sure it is applied in a reasonable manner where there are significant numbers of speakers. That’s the amendment.
Senator McCallum: I understand what you’re trying to get at there. I support it, but I am worried about, “composing the Indigenous language population of an area.” When I look at Manitoba, there would be many different areas. You’re looking at the isolated and at the populations in Thompson, Brandon and Winnipeg. I can’t see how that works.
You would need to define the area and then the particular characteristics. You would have to define that population and the proportion of that population to the total population.
Remember, they said they had a lack of data. They haven’t been able to determine the people off reserve and on reserve. Then you have people that are moving back and forth. That was one of the problems we had when we delivered services. People were moving in and out so fast that you would go and there would be 28 people there, and you would go and another group would be moving out. It’s very mobile.
You said you looked at French and English. There are many different dialects, even with Cree. I agree with it. I just don’t know how we could put that concept in place. People are overwhelmed by it. Do you know what I am saying?
Senator Patterson: Yes. Madam Chair, this is a bit of a tricky one because the actual funding would be done in a regulatory process. Regulations will be developed. I am told the department is committing to co-developing those regulations in consultation with Indigenous language representatives.
That regulatory process, which is the same process used to allocate significant funds for French and English minorities, is the opportunity for input from language leaders in the Indigenous communities. That regulatory process will require notice and some opportunity for input.
When we get into the weeds of who will get funded and what areas are concerned, we will have an opportunity through the regulatory process to set up fair criteria and to have input into exactly what areas are defined by the government, but I don’t think we can do it in the bill.
Senator Sinclair: I would be interested in hearing the comments of the departmental officials first, and then I have some comments with regard to the specific wording.
Ms. Laurendeau: The comments made by Senator McCallum are quite accurate. Part of the reason why the legislation has been left fairly open was to actually be able to develop regulations down the road with specificity and adequate data.
The preoccupation that could arise in defining in the legislation the same way that it has been done in the Official Languages Act is that the proportions are not defined in a binary way as they are in the Official Languages Act. There is a risk because of the lack of data that the bill could inadvertently overly restrain what could be developed in the regulation.
It had been considered at the time, but that was the risk that was balanced and leaving it broad enough and keeping the development of the regulation to be distinction based and specific. Regulations and agreements, quite frankly, because some of that will also be defined in specific agreements under section 7.
That is what I would be offering to the committee.
Senator Sinclair: Perhaps I could follow that up and point out that I have similar concerns. I am very sympathetic to the point, senator. I understand what you’re trying to achieve, but I think in fact it may work the opposite way because the use of the wording that is here could be arguably used to minimize the amount of funding that a particular group would receive. First of all, it refers to the Indigenous language population. The premise of that, I am assuming, is that those are speakers. One of the purposes of the bill is to recognize that there are groups of Indigenous people who don’t know how to speak their language. They’re to be considered and they will be funded in order to be able to reclaim their language.
The use of the term “Indigenous language population of an area” suggests to me that if there aren’t enough speakers in an area, then funding would be impacted by that. It also talks about the particular characteristics of that population. I am not sure what that means. The vagueness of it concerns me because particular characteristics might be taken to say that if a population does not want to learn how to speak their language, then those of that group who do want to speak their language might be eliminated from consideration.
The third point is the phrasing, “the proportion of that population to the total population of that area” also puts into jeopardy the fact that smaller groups are going to lose to bigger groups. Indigenous groups in urban areas are going to lose out to the fact that the total population of the area diminishes their presence in the overall consideration. I have a concern about it.
I don’t think it’s necessary because the wording of section 7 addresses that. I am sure in some way the department is going to have to figure out the obligation to fund. I am prepared to leave that to regulations that the department will administer. I consider that this might be unhelpful. This particular amendment might work to the opposite desire of what it is you’re trying to achieve.
I express that concern, so I would say I don’t think I am prepared to support it for that reason.
Senator Francis: To follow along on what Senator Sinclair has said, he used the example of Prince Edward Island. We have virtually no Mi’kmaq speakers. My wife is one of a very few. What effect would that amendment have on the whole province, the geographic area of the province?
Ms. Laurendeau: I think that is a fair question. It has been part of the preoccupation when we considered it and decided to leave it so the granularity could be specific, depending on the situation of various languages and various geographic areas.
The point that Senator Sinclair made would also have an impact on how to deal with populations that live in urban areas if you look at the proportions compared to the other languages.
The Chair: Senators, do we want to suspend now?
We only have permission to sit until 6 p.m. Therefore we will have to adjourn the meeting. We will have to find another time because our permission was only from 4 p.m. to 6 p.m.
The meeting is adjourned, and we will pick this up when we have our next meeting on this topic.
(The committee adjourned.)