THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
OTTAWA, Tuesday, June 4, 2019
The Standing Senate Committee on Aboriginal Peoples met, to which was referred Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, met this day at 9 a.m. to give consideration to the bill.
Senator Lillian Eva Dyck (Chair) in the chair.
The Chair: Good morning. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples either here in the room, on television or listening via the web.
I would like to acknowledge, for the sake of reconciliation, that we are meeting on the traditional, unsurrendered land of the Algonquin peoples.
I am Lillian Dyck, from George Gordon First Nation in Saskatchewan. I have the privilege and honour of being the chair, [Indigenous language spoken], of the Standing Senate Committee on Aboriginal Peoples.
Today, we continue our examination of Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.
Before we start, I would like to invite my fellow senators to introduce themselves, starting on my right.
Senator Doyle: Norman Doyle, Newfoundland and Labrador.
Senator Tannas: Scott Tannas, Alberta.
Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.
Senator McInnis: Thomas McInnis, Nova Scotia.
Senator Dalphond: Pierre J. Dalphond from Quebec.
Senator McCallum: Mary Jane McCallum, Treaty 10 territory, Manitoba region.
Senator Francis: Brian Francis, Prince Edward Island.
Senator Massicotte: Paul Massicotte, Quebec.
Senator Sinclair: Murray Sinclair, Manitoba.
Senator Pate: Kim Pate, Ontario.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Lovelace Nicholas: Senator Lovelace from Tobique First Nation, New Brunswick.
Senator Christmas: Dan Christmas, Membertou First Nation, Nova Scotia.
The Chair: Thank you, senators. I would like now to welcome to the committee, via video conference, Professor Dwight Newman, Canada Research Chair in Indigenous Rights in Constitutional and International Law.
Thank you, Professor Newman for taking the time to meet with us. The floor is yours, after which you will get questions from the senators.
Dwight Newman, Canada Research Chair in Indigenous Rights in Constitutional and International Law, as an individual: My name is Dwight Newman. I’m a professor of law and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan. I’m currently on a term as a visiting fellow at the Oxford University Programme for the Foundations of Law and Constitutional Government. I am joining you from near Oxford. I was grateful that this could be set up via video.
I am pleased to participate in the discussion of this important bill, which is a historic piece of legislation that would undertake some of the vital work of seeking to implement the objectives of the UN Declaration on the Rights of Indigenous Peoples. The bill obviously represents the passion and commitment to Indigenous rights of those who worked to put it forward and the civil society organizations that have supported it. All of those are noble endeavours and respond to deep-seated moral responsibilities that all Canadians must face in light of our past failures in relationships with Indigenous peoples.
At the same time, the bill seeks to implement the declaration in particular ways. As a potential statute, it’s my submission we must consider Bill C-262 in terms of its potential to affect all areas of Canadian law.
There is an enormous amount we could discuss, but in some brief opening remarks, I wish mainly to highlight some of the often understated complexities of the bill and its effects on Canadian law. I want to do so by making three points about some of the important differences we can identify in things said about the bill in evidence received thus far. I would consider three points the Senate needs to resolve as it furthers the implementation of the objectives of the declaration.
First, there have been statements about the bill that it has no immediate effects, and there have been statements that highlight that some parts of it may well have immediate effects. In particular, that at least clause 3 of the bill does have immediate statutory effects and perhaps even that other sections also ground litigation sooner rather than later.
To give an example of a statement that the bill has no immediate effects or at least what appears to say as much, in the debate in second reading on November 29, 2018, Senator Sinclair said:
. . . the bill itself doesn’t raise the implementation of the declaration as its objective. The bill talks about calling upon Canada to do an analysis of existing legislation to see which laws are currently inconsistent with the declaration. That’s primarily what this bill is about.
He made similar statements in his initial remarks before the Senate committee on May 28.
However, in further discussion and in responses to a question from Senator Patterson, Senator Sinclair made different statements that revealed that there are other legal effects, and he identified that. These include changes in the legal environment as well as a statement they made: “That Article 3 will probably have at least an interpretive impact upon Canadian law, I think, because governments themselves will interpret their approach as recognition that they are now recognizing the declaration as a universal international human rights instrument.”
Assistant Deputy Minister Laurie Sargent said even farther reaching things on May 28 before this committee, saying that:
The declaration, like other international instruments, can also be used to inform the interpretation of domestic law. As a result, the declaration already has application in Canadian law, as affirmed by clause 3 of the bill.
Although that’s portrayed as identifying something already in Canadian law, it’s not the practice of all courts when confronted with arguments about the declaration. I think it suggests an immediate effect from clause 3 of the proposed act.
Apart from clause 3 of the bill, that in answering questions from Senator Tannas, Professor John Borrows stated that other parts of Bill C-262 would also imply that if legislative changes were not completed quickly enough, there could be litigation. Professor Borrows said:
It’s always possible because when you’ve got something legislatively in place, the question is whether or not the government is acting consistently with its legislative objectives. So yes, there could be a case.
There are some differing statements as to whether the bill has immediate effects. I think there are strong arguments that parts of it do, despite the possibility that there is an attempt not have an immediate effect.
Second, there have been statements that the legislation has no effects on the provinces, and there have been statements that seem to assume that it does.
Testifying on May 28 before this committee, Assistant Deputy Minister Laurie Sargent stated:
. . . we don’t see Bill C-262 requiring or obliging provinces and territories to take measures. This is a federal bill aimed at the federal government in terms of its scope.
However, on May 3, 2018, testimony before the house committee considering the bill, Professor Borrows’ opening statement used a plural construction in reference to Canadian governments and also assumed other applications of the bill beyond the ambit of simply applying to the federal government, or at least appeared to.
The reference in clause 3 of the bill to Canadian law has been referenced by Gib van Ert in an article about Bill C-262, where he points out that this is not a term normally used in this sort of statute, that normally the term would be “laws of Canada,” and that the term “Canadian law” might appear to have an application beyond the federal government that wouldn’t normally be permitted. There have been some statements each way on this point.
Turning to my third point, there have been claims that the results of the bill’s incorporation into Canadian law of the declaration provisions on free, prior and informed consent would be based on a settled meaning of FPIC, and there are other statements that show more complications.
I’ll try to wrap up quickly so we can turn to questions.
I briefly reference Assistant Deputy Minister Ross Pattee’s citation at this committee of a statement he indicated was from James Anaya, which has now been cited in some media sources as being a definition of free, prior and informed consent from the Government of Canada. That was in his May 28 testimony before the committee.
I’ve not been able to locate the exact context for the statement. A Google search of different parts of the quotation doesn’t readily point to an electronic document that it comes from. It’s stated as something from Mr. Anaya. I certainly take it as such, but I don’t think it reads as a legal definition.
There are various parts of it that go in different directions or are more casually phrased than might be applicable in a legal definition. Some of the claims as to the meaning of FPIC before this committee, like the quote from Mr. Anaya, have been clear in claiming that FPIC requires only development of a process rather than sometimes the requirement of obtaining consent.
At the same time, there has been other testimony, such as that from Professor Mauro Barelli before this committee on May 29 where he said:
. . . there may be circumstances in which Indigenous peoples should have the right, not just to give consent, but also to withhold it. In other words, when a project is likely to produce a major negative impact on the lands, rights and, ultimately, lives of Indigenous peoples, then states will have a duty, not only to consult, but also to obtain their consent.
Mauro Barelli has written extensively on FPIC. I would refer you to his book as well as his chapter in the Oxford Commentaries on International Law on the declaration that point to some ongoing discussion about the meaning of free, prior and informed consent. There is more we could talk about and there is much more we could discuss in general.
What must be borne in mind is there are very significant effects from this bill. I have set that out before. I would refer you to my written submissions before the house committee previously and before this committee more recently for more detailed comments.
I would point out that others have also highlighted the significant effects of this bill. In his May 29, Senate testimony Professor John Borrows said of the bill:
It’s like making an amendment to each and every bill that already has flown through Parliament.
I don’t envy the Senate in its challenging role on this bill. We must all admire the commitment of those who have brought the bill forward. The bill could do much on issues that Canada must address as it works to respond to our tragic legacies in relation to Indigenous peoples and to improve Canada’s relationships with Indigenous peoples for the future.
At a symbolic level, the bill would do much in those directions, but Parliament must also consider what unexpected consequences the bill might have as a statute and must have it drafted properly as a statute. In my respectful submission, detailed further in my written briefs, there are reasons to engage in fuller study of a bill that in some ways is analogous to omnibus legislation. There are some reasons to make specific amendments to the bill to achieve its purposes while limiting the potential unexpected effects.
Those would be some opening remarks. I’m happy to talk to matters which may be of interest to the senators on the committee.
Senator McCallum: Thank you for your presentation. Canada has ratified six major human right instruments, including the International Convention on the Elimination of All Forms of Racial Discrimination, which was ratified on October 14, 1970, the International Convenant on Economic, Social and Cultural Rights, which was ratified on May 19, 1976, and the United Nations Declaration on the Rights of Indigenous Peoples was also ratified in Canada. All these deal with racial discrimination and nothing has been done.
In one of the reports that Canada made to the economic, social and cultural rights group, they included provinces. They went into some of the problems that Canada is having in terms of discrimination against women, children, its linguistic rights and self-government agreements. If we have those rights and we still, as Indigenous people, have not been given our human rights, including the right to consent, because that’s been used to try to push the United Nations Declaration on the Rights of Indigenous Peoples’ bill to make it so that people are fearful of it. Free, prior and informed consent has existed in various ways in Canada in various relationships, including the one between health professionals and their patients, lawyers and their clients. As a health professional, I had that legal responsibility to deal with my patients, to tell them all their choices, what the risks were, to give them the information so that they took the responsibility to make decisions on their behalf. They had responsibilities related to that consent that they were given.
It has always existed. I have dealt with it for 35 years. When people bring this up, I don’t understand what the fear is. I don’t understand why people are worried about this bill, when it’s one about relationships. If you look at the articles that are in Bill C-262, and when I see them, it’s a social relationship that Canada has with everyone, all Canadians. There will be litigation either way because Canada has not taken the responsibility to look after the Indigenous people and the human rights violations that occur.
In Article 2 of the elimination of all forms, it says:
Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;
To me, when I look at this bill, it’s a way of starting the progress towards reconciling the relationship with Indigenous peoples. Do you agree with that, or do you have comments?
Mr. Newman: You said a few different things. I agree with most of them, I think. Canada has very important treaty commitments that you have highlighted in terms of a number of the international human rights treaties to which it has become a party. Something like the Convention on the Elimination of Racial Discrimination would probably lead to more requirements on Canada than what it has fulfilled thus far. There is more that we should do to eliminate racial discrimination in various contexts, including those of Indigenous peoples in Canada.
You have also indicated that Canada has ratified the UN Declaration on the Rights of Indigenous Peoples. I’m going to quibble slightly but not out of any fundamental disagreement. I want to highlight it’s not a treaty instrument that states “ratify,” although Canada has officially endorsed and indicated its support for the policy, I think very valuably and importantly so. But a declaration functions slightly differently than a treaty. That does not mean that we should not go ahead to implement it, and there are important ways of doing that.
In relation to this comparison on free, prior and informed consent in the medical context. I don’t urge a fearful attitude towards free, prior and informed consent. As you say, we have had it in the medical context as a requirement for a long time.
Tragically and horrifically, it has not always been respected, including in the context of Indigenous women who have been subjected to forced sterilization. In Canada that has occurred and even into surprisingly recent times.
But, of course, free, prior and informed consent works in the medical context in principle so long as it’s applied. But what’s different is the underlying rights of the patient are subject to a great deal of agreement, whereas, in the context of Indigenous rights, we are still developing towards the exact shape of the underlying right. So in what context Indigenous peoples have the ability to consent or withhold consent on a particular issue in the Canadian constitutional context, there is ongoing case law.
In the context of the UN Declaration on the Rights of Indigenous Peoples, there are very different versions of what some of the articles mean at this point in time.
It’s early days. Those will get resolved. I don’t urge a fearful attitude towards free, prior and informed consent in principle. I simply urge Parliament to consider carefully what it’s seeking to achieve through the bills that it’s adopting. I highlight some aspects of where there may be unexpected uncertainties or consequences.
Senator McCallum: Thank you.
Senator Patterson: Thank you, Professor Newman, for being here.
I have two questions. You have pointed out three areas where the bill creates ambiguities, contradictions and different interpretations. That’s the development of an action plan, which may or may not have legal meaning, depending on how swiftly governments move.
You pointed out the disagreement on interpretation as to whether the bill has impacts on provinces and territories, as well as the federal government. And you have described inconsistencies on the interpretation of FPIC between it being just a process or its development of a right.
First, I would like to ask you: What are the implications of those ambiguities and contradictions embedded in the bill? What will be the result of that lack of clarity and those inconsistencies?
Mr. Newman: I think the answer has to be that the effects are uncertain. That’s not the most desirable way to go about enacting legislation with uncertainty on where it leads to. Obviously there are always times where there are certain uncertainties, but to the extent possible I think Parliament may want to craft where the bill gets things towards as opposed to leaving that highly unpredictable, in the hands of the courts and subject to an enormous amount of interpretation.
In terms of the action plan having meaning or not, you have mentioned a few spots where there are some uncertainties. Individuals like Gib van Ert have written from the perspective of whether this bill is going to achieve what Indigenous peoples are seeking through it. He says no, because there are a lot of ways in which there are great uncertainties on whether it achieves anything because of the way in which some of the statutory provisions are phrased.
In terms of the disagreement on federal versus provincial application, there is a potential constitutional issue down the road. The way in which Article 3 is phrased in terms of Canadian law as opposed to laws of Canada is a less desirable way to phrase that section of the bill so as to avoid a difficulty down the road.
The differing versions on free, prior, and informed consent speak to a large debate in Canada and the international arena. In simply embracing an uncertain point at this time, Parliament is giving less definition to what’s going to come down the road than it could do. I raised the possibility in my written submission of Parliament even putting a definition of free, prior and informed consent in the bill for purposes of clarification if it wishes to manage that more carefully.
It’s open to Parliament to proceed with less clarity on where things might end up. In terms of achieving what Parliament wants to achieve through the bill, it would be desirable to try to clarify things. Some of them are just drafting issues and some are more substantive issues where there could be more certainty pursued, but the present form doesn’t do that.
Sorry, I’m going on a bit long. It’s a big question you have asked.
Senator Patterson: Thank you. That leads me to my second question. I think you have started to answer it. You said Parliament may have to craft words that provide clarity. It is open to Parliament to provide a clearer definition of FPIC. You are suggesting this bill could be amended. Could you elaborate?
Mr. Newman: Yes. I think the bill is important, but it could be amended to do more clearly things that it’s aimed at and create much less uncertainty by removing some of the features that cause more issues. I don’t know if my written submission to the Senate committee has been translated and made its way through.
There I raised the possibility, for example, of removing the most problematic substantive article of the bill, which would be section 3. I think some of the spirit of section 3 could be put into the preamble and the recitations.
The phrasing in section 3 about the declaration having application in Canadian law is unprecedented legislation in any Canadian statute so far as I can determine.
To put that in and suppose, as some have done, that it’s simply locking in a way — through things that have already been happening — that doesn’t allow for all the kinds of interpretations courts might give to it. Removing that provision could be an important amendment along with adjusting some of the language that’s very far-reaching. I didn’t include this in my latest Senate submission. Previously I had raised issues about the language in section 4 about “all necessary measures” being very broad wording.
I would urge the Senate to look at the various pieces written about Bill C-262. People like Gib van Ert and Tom Isaac have written longer pieces that talk about these various issues. There are a number of amendments I have listed in my written submissions. I think Parliament could think about various amendments that could improve this bill, make it work for everyone and help it accomplish something without engaging in the creation of huge amounts of uncertainty.
Senator Patterson: Thank you.
The Chair: Just for your information, Professor Newman, your submission has been circulated to all committee members.
Senator Tannas: Senator, I received a copy of a submission to the committee. It’s in English only. I seek permission to pass it around here before it’s translated.
Senator Sinclair: What have you received?
Senator Tannas: I have received a copy of a submission from former Supreme Court Justice John Major that has been sent to Senator Dyck. I would like to pass out the submission. It’s in English only, but we’ll get it translated.
Senator Patterson: I will so move.
The Chair: Does the committee agree to distributing the information in English only?
Senator Sinclair: First of all, I haven’t seen that, so I don’t know what it is that Senator Tannas wishes to distribute. I’m not prepared to support that or agree to this unless I see it first. Secondly, it may be that the translation is essential. Are you intending asking Professor Newman questions based on that submission?
Senator Tannas: No.
Senator Sinclair: Then we can deal with that at the end of the meeting. Can I read it first?
Senator Tannas: I’ll get on with my questions. We’ll come back to that.
Professor Newman, Senator Sinclair has been widely quoted in debates, in this committee, and elsewhere talking about the bill’s purpose. I think everybody agrees with what Senator Sinclair has presented as the bill’s purpose — essential purpose, only purpose, however you want to put it.
However, one of the purposes that was never mentioned in anything that Senator Sinclair said was “immediately affecting every law on Canada’s books.” That was not something I ever heard or have been able to find anywhere as to what Senator Sinclair — or the proponent in the house — would say was the purpose of the bill or one of the purposes of the bill.
We heard last week from Professor Borrows that the effect of the bill is to essentially append the UN Declaration on the Rights of Indigenous Peoples to every law on Canada’s books; and that each law on Canada’s books would now need to be looked at through a different lens; and, he reluctantly agreed, that could be done in court the day after this bill is proclaimed. Do you agree with Professor Borrows’ assessment?
Number two, you’re a Canadian citizen. You bridge many communities through your work as an eminent scholar in this area but also as a Canadian citizen. Do you think Canadian citizens are aware of the potential impact of this bill? Do you think the legal community is alive to this? Do you think those who drive the economy have a clue that this is about to descend on them? Do you think the provinces are sufficiently aware? It’s a private member’s bill that has slowly worked its way through the process and is now in the final stage. Do you think any of those communities are aware; and if so, to what sufficient level do you think they are aware?
Mr. Newman: I’ll speak first to whether I agree with Professor Borrows’ assessment. I’m not sure that I would describe things in the same way that he has. I think he has done it a bit colourfully, but he has illustrated a possible set of arguments that this bill, as it currently reads, could generate.
In two ways, the bill could be argued to affect Canadian law immediately. One of those is in terms of the phrasing in section 3, which says the declaration has application in Canadian law. Second, the sections that refer to the action plan could be litigated upon if there were dissatisfaction with the steps taken. The requirement of all necessary measures, which I believe is in section 4, is a sweeping requirement and broader language than is usually used in terms of the types of standards to which a party or government is to be held.
There is a basis for his argument that you could think of this as a requirement that every law in Canada be looked at with the declaration in mind. The phrasing of the sections that talk about harmonization of Canadian law with the declaration, you could describe it metaphorically as attaching the declaration to each Canadian law in both of those two ways.
I’m not sure what exactly he was meaning there, but there is a credible argument. I think that is of concern. I don’t think a court has to accept all of that, but the fact that there is a credible argument is exactly the problem, that there is a wide range of what could happen under this bill. If Parliament said that’s what they want it to be, and we’re ready to take that step in that way, that’s one thing. But if the step is that it’s unpredictable what will happen under the bill, then that is something that could be fixed through appropriate amendments and adjustments.
In terms of whether Canadian citizens are aware, there is some awareness about this bill. I think many senators may be receiving submissions from lots of Canadians from civil society movements. There is a passion about this bill, and understandably so. In my career, I’m working on trying to advance rights of Indigenous peoples. We need to do that in sophisticated ways and in ways that find appropriate reconciliation with other interests.
Is the legal community fully aware of what could happen under this bill? I don’t think it has received as much discussion as it needs. I think some people are aware. I have talked with people at conferences who have forecast 10 years of litigation about this bill. The prospect of this concerns me.
Are the provinces aware? I don’t think any of them could be unaware of this bill being considered, but there has been much less discussion of the possible different effects under it than I would have liked to see in Parliament. The House of Commons heard from many witnesses, but very few of them spoke specifically to the effects of the bill. There has been a lot of discussion of the bill in broad terms. We need a discussion in specific terms, as difficult is that is to have. Of course, the symbolism and values of the bill are things that I would hope all Canadians would agree with. However, there are possible unexpected consequences from this bill. There are issues on the drafting that could be cleaned up and fixed in ways that would improve this bill. I don’t think there has been a lot of awareness of that in the ways that I would have preferred to see.
Senator Tannas: Thank you.
Senator Sinclair: Welcome to the world of law when it comes to trying to predict how law is going to be interpreted down the road.
Professor, let me ask you a few questions, first of all about your international experience. Could you tell the members of the committee what international experience you have with regard to the United Nations or international law generally, other than perhaps your studies as a student?
Mr. Newman: In terms of international law generally, I have not worked in the United Nations per se. I have provided legal advice to one embassy to the United Nations. I wouldn’t be able to speak to which.
I have worked as co-chair of the American Society of International Law Rights of Indigenous Peoples Interest Group. International law has been one of the areas I have researched and studied within. I am currently editing an international law collection on the rights of Indigenous peoples in international law, which has brought together experts from around the world. I serve on the International Law Association Committee for the Implementation of the Rights of Indigenous Peoples. We’re working on discussions there. I have had some involvement in international law as a research activity, and in certain policies/legal-type contexts. I’ve provided advice on international law in the context of certain issues in Canada as well.
Senator Sinclair: Excellent. Would you explain to the members of the committee, please, the difference between a UN declaration and a UN convention?
Mr. Newman: That’s a complex matter in some ways. The other word sometimes used for a “convention” is “international treaty.” That’s an instrument to which states agree in a certain way. They end up signing, and ultimately ratifying, an international treaty. It creates binding legal obligations on the state’s party to that convention or treaty. Some conventions are bilateral, some are multilateral, and they create binding legal obligations. Some of the international human rights instruments referenced earlier are of that nature.
A declaration of the sort we are talking about emanates from a General Assembly resolution. That’s the way it’s passed through the United Nations. The General Assembly does not function as a legislative body in the same way a Parliament does domestically, but it represents the states of the world coming together and saying something. There are more complex arguments about the exact status of declarations that may emanate from the General Assembly, but there is an attempt to offer some type of a comment on an issue.
There is a wide variety of declarations passed in this way, some of which have come to take on a very significant and norm-creating character, something like the Universal Declaration of Human Rights, which ended up being the foundation for the international covenants on civil and political rights and economic and social and cultural rights.
There are some other declarations that have been very contested.
Of course, the declaration that we’re talking about has a bit of a different character. There was a decades-long negotiation process of drafting, followed by a negotiation process involving, very significantly, Indigenous peoples first coming together and engaging in some negotiation process with states before that made its way through the UN General Assembly as a declaration.
I’m not sure if you want more on that, or that’s just to give an idea.
Senator Sinclair: I could listen to you for hours, professor, and I probably could, but I’m not sure other members of the committee are with us anymore.
Let me ask if you would then answer this question for me just on a general basis: When Canada adopted the UN Declaration on the Rights of Indigenous Peoples without reservation, of course, subject to Canada’s Constitution, what do you think was the impact of that law?
Mr. Newman: Canada has offered two endorsements of the declaration subsequently to its initial vote against, but the latter was phrased as without reservation, and although subject to a complicated set of nuances in that statement, I think it indicates that Canada is committing at a policy level to seeking to implement the objectives of the declaration within Canada. It’s withdrawing the effect of its vote against at the time of the declaration’s adoption at the General Assembly. Some declarations over time contribute to the formation of customary international law. Canada reversing its vote and saying that it now endorses it is significant. It’s significant that the other states that voted against it have done the same thing.
It doesn’t immediately bind Canada to legal obligations, but it says that Canada is not standing in objection to legal obligations that might grow from the declaration over time. It is making a strong policy commitment, in my view, to the objectives of the declaration.
Senator Sinclair: We had a representation from an international legal expert in our last committee hearing, whose name was Professor Barelli who said that the impact of the adoption of the UN Declaration on the Rights of Indigenous Peoples by Canada had the effect of Canada committing to a minimum standard of human rights with regard to Indigenous people as expressed by the declaration. Do you agree?
Mr. Newman: I don’t think I would agree that through an international law, by that step alone, Canada is committed to that minimum standard. I think Canada is certainly committed to minimum standards through its other treaty instruments. At a policy level, it’s committed to the minimum standards expressed in the declaration and to seeking to further the objectives of the declaration.
I looked over his testimony. I should have looked more closely at what exactly he said. The way that you phrased it, I’m not sure I would agree precisely with that.
Senator Sinclair: You wouldn’t agree with his statement that it held Canada to a minimum standard of human rights?
Mr. Newman: I think that Canada endorsing the declaration doesn’t have that legal effect on its own. But I think Canada has committed to human rights standards, both legally through treaties, and, at a policy level through its endorsement of the declaration, Canada has committed. It’s committed to any customary international law standards expressed in the declaration, and there are articles of it that would represent customary international law. Canada could have made an argument before that it was a persistent objector to those standards by the fact that it voted against and it would have now removed any claim of that sort. There might be some sense in which there has been a shift in the commitment of Canada that would be legally bearing, but, normally, simply endorsing a declaration doesn’t commit a state to precise legal obligations in itself subject to, as I say, over time the declaration may lead to obligations.
Senator Sinclair: Given your comment earlier that there hasn’t been much of a discussion within the legal community about the impact of the UN Declaration on the Rights of Indigenous Peoples, I’m curious as to how you might explain the numerous legal decisions in cases in which the UN declaration has been referenced. We have counted the number of cases, and we are approaching 200 now, I think, in which the issue has been raised. Perhaps you can give me an idea of how the legal community feels. You think it seems to be ignoring or not aware of the declaration, while it’s such a topic in litigation.
Mr. Newman: I think the question I answered was with respect to whether there was awareness within the legal community of this bill or potential statute.
Senator Sinclair: Article 3 and Article 4, though, and the impact of the implementation of Article 3 and Article 4.
Mr. Newman: That’s what I’m talking more about, the phrasing of the statute, more so than the declaration itself.
Senator Sinclair: Okay.
Mr. Newman: I think that the legal community should be more aware of the declaration than it is. There are parts of the legal community that clearly are engaged with the declaration and are advocating it in various courtrooms. I think it’s incumbent on all of the legal community to become more aware of the declaration. I hope some of the recommendations that your commission made will further some of that awareness over time in terms of all lawyers being aware of the UN Declaration on the Rights of Indigenous Peoples and other Indigenous rights issues, more so than they have been in the past.
I have a concern that the legal community is not aware of the precise way in which this bill may have effects in the immediate future.
Senator Sinclair: Thank you.
Senator LaBoucane-Benson: Thank you. My question for you today is about a statement that Mauro Barelli made, and I know you quoted him, but he had another interesting piece. He said:
. . . I would like to mention that with the 2014 Tsilhqot’in decision, the Supreme Court of Canada has already moved, without expressly mentioning FPIC, towards a stronger, consent-oriented interpretation of the duty to consult, which is essentially in line with the UNDRIP model of FPIC. Indeed, as part of its 10 principles respecting its relationship with Indigenous peoples, the Government of Canada has acknowledged the need to “build on and go beyond the duty to consult.”
What I believe Mr. Barelli was saying is we are already there. Our Supreme Court in its decisions on the duty to consult and accommodate has already almost gotten to FPIC, and adopting FPIC would not be a big stretch for us now at this moment in time in Canada. I wonder what your opinion is.
Mr. Newman: I agree there has been a move towards consent in some of the decisions of the Supreme Court of Canada, notably in the Tsilhqot’in decision. The Tsilhqot’in decision applied consent in a fairly specific context where there is legally established Aboriginal title. Then they say there is a requirement of consent for somebody else to use that land. It is not all that surprising. That’s a normal consequence of ownership of land.
They also say that in certain circumstances where there is a very high-level duty to consult, it may come to approach something akin to a requirement of consent. That is one possible read of international law on free, prior and informed consent and when it applies. Mauro Barelli has argued for that interpretation of international law, that there is a bit of a sliding scale or a spectrum that is in some ways quite analogous to the Canadian duty to consult doctrine. I have argued that as well.
James Anaya, a leading international law scholar on Indigenous rights, who is the Special Rapporteur, had argued that in an early statement of the Special Rapporteur after the adoption of the declaration; I believe it was his 2009 report. One read is that consent applies as a requirement in certain very specific circumstances.
There are arguments that consent applies much more broadly as a requirement. If that’s the read, Canada is not there, Barelli’s argument is not there either, but the argument of others is similar.
The adoption of this bill leaves it open to discussion on which version we’re going to see things develop. It may be that Parliament is quite ready to throw that to the courts and see what happens. It may be that something like Barelli’s argument is the one that shapes what FPIC looks like. That is by no means a certainty.
Senator Dalphond: Did you refer to the French version of the bill in your analysis?
Mr. Newman: I have in the past. I didn’t in preparation for today. In my submission to the House committee, I made the point that I think that there are some inconsistencies here in terms of the English and French terms used as compared to those that correspond in other —
Senator Dalphond: The answer is you didn’t really look at that as you prepared for this morning? You referred to section 3 of the bill as having determined the impact on the laws of Canada. You say the words in application with Canadian law is a kind of dubious concept that will be very encompassing. You will see that in the French you don’t really find the corresponding expression. I want to point that out to you.
Where do you find in this bill any overriding principle that this bill will override any other federal legislation? We have that concept with the Human Rights Code. For example, the Quebec Charter of Human Rights and Freedoms will override all provincial laws. Where do you find here any statement that says this bill will override any federal law? Where does it refer to a bill or to Parliament? My reading is that it refers to undertakings by the government, period. It says nothing about federal laws. Where do you find the danger that federal laws will be reversed or overtaken by this piece of legislation?
Mr. Newman: Thank you for these questions. I agree with you that there is an inconsistency between the English and French versions of section 3. That was one of the inconsistencies I was pointing towards at the House committee when I made that point, and I think that’s concerning. The use in the French version of the terminology:
3 The United Nations Declaration on the Rights of Indigenous Peoples ... is hereby affirmed as a universal international human rights instrument with application in Canadian law.
I’m not sure if that means the same thing that it’s an instrument with applications in Canadian law. There may be nuances that are different. I had hoped that the federal government, with all of its resources, and with the support of —
Senator Dalphond: My question is simple: Where do you find any overriding principles in that bill that says that it overrides any federal law?
Mr. Newman: With respect, I thought you asked two questions. I was answering the first.
In terms of whether it overrides Canadian laws, I’m not certain it does and I’m not certain it doesn’t. The phrasing —
Senator Dalphond: Where do you find that, sir? I’m a judge. I really like to find the answers in the bill. Where do you find that?
The Chair: Senator Dalphond —
Senator Dalphond: Where does it say that it overrides Canadian federal law?
Mr. Newman: The phrasing that it has application in Canadian law, with respect, in being an unprecedented term in a statute is open to that as one possible reading of it. The rights, within this instrument, are given application in Canadian law, and as a later adopted statute, that’s taken as overriding other Canadian laws.
I don’t think that’s the only interpretation. It’s obviously the one that Professor Borrows seemed to give to it. I don’t agree with that interpretation. It’s one within a range of possibilities that a court could end up giving to this bill and to this as a statute.
It’s significant that section 3 was not in prior versions of this same bill. It’s something that has been added in. In terms of the drafting history, a court may attempt to give meaning to section 3 and may then attempt to read it in a way that does override Canadian law.
I don’t know if that is the interpretation that would result and it’s not the one that I would adopt in reading it. I think it’s one of those within the range of interpretations that could credibly be given to it.
Senator Coyle: Professor Newman, thank you very much for your input today and your assertion that Bill C-262 is an important bill. You have mentioned that in order for this bill to achieve its very important intention by government and Indigenous peoples who have been fighting for this for decades, and by their Canadian neighbours who are very much on side with them, it needs to be amended.
That is of tremendous concern, of course, to many people. I’m concerned about it being able to keep its meaning, intention and teeth. We want this bill to have some real meaning and strength. That’s why we’re creating a bill as opposed to just leaving it with the UN declaration.
Here we are at the eleventh hour. This Parliament is close to being over, as we know. There are less than three weeks left for the House to sit. Many Canadians are telling us they want this bill passed.
If this bill is passed as is, and there is a chance that will happen, are there measures that you believe could be taken after the passage of the bill that could resolve some of the issues you have raised today?
Mr. Newman: The bill would have the status of a statute. It’s always possible to amend a statute later or to add other statutes that bear on that statute. It would be possible to pass the bill not knowing what all of the effects might be but with a plan to go about amending it later on. I’m not sure that’s the most desirable way of going about it but I also take your point about the situation in which things are. In my opening statement, I emphasized that I don’t envy the situation that the Senate is in, having to deal with this at this very late stage.
This is a bill of much significance and one that really bears on every area of Canadian law, and rightfully so in terms of there are Indigenous issues to be considered in every area of Canadian law. That’s the one that leaps to mind when you ask if there is any possibility of doing some things later. You could pass a statute with the thought that it has difficulties in it with a plan of passing further statutes later on.
There may be undesirable features simply because who knows what comes in the bill later on. Would it be better to get it right in the first place in a way that everybody can live with to start with?
Senator Coyle: Thank you.
The Chair: We are close to the end of our time. Perhaps we could continue with at least three shorter questions. Then we’ll move to the second panel.
Senator Lovelace Nicholas: Since we’re short of time, Madam Chair, I think I’ll give up my time to Senator Christmas.
Senator Christmas: Thank you. Professor Newman, thank you for being here.
If Canada did not pass this bill, will Canada fall further behind in the domestic implementation of international human rights for Indigenous peoples? In other words, will Canada suffer an international black eye if it doesn’t pass this bill?
Mr. Newman: I think what ultimately matters is to work on all of the different issues on Indigenous rights. This bill is simply an invitation in some ways to taking a lot of further steps. Whether this bill is in place, I hope various further steps will continue.
Professor Borrows, in his testimony, talked about the potential of the bill to contribute on economic issues for Indigenous peoples. Whether this bill is in place or not, there is important work to do in removing barriers to economic development that have been put in place and held back Indigenous communities. What will matter is taking those steps in that realm and in every other realm that this bill would touch.
I can’t speak to the immediate effects if this bill goes through. It’s an unusual bill amongst those in the world. That’s not a pejorative term. I’m just saying not a lot of states have done this.
Canada can keep moving forward on Indigenous rights, whether it does or does not pass this bill.
Senator Christmas: Given the events yesterday of the release of the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, it’s pretty clear in Canada we have serious human rights violations of Indigenous people in this country. If we don’t pass this bill, is Canada falling further behind? Are we not taking the necessary available steps to try to find a remedy for those violations of international human rights of Indigenous peoples?
Mr. Newman: I think that it’s vital in every way that Canada keep working to advance Indigenous rights. I don’t think that means that Canada has to pass every bill that comes along on an Indigenous issue whether or not the bill has flaws. I don’t want to overstate the flaws or understate the challenges either. I think it’s very important that Canada keep working on a range of measures to improve our situation on Indigenous rights. There are other statutes that might be more ready to go and some that might not be. Maybe this one is ready to move forward; maybe it is not. That’s a judgment the Senate will need to make.
However, I don’t think that a decision not to pass one particular bill because it has issues with it is a rejection of Indigenous rights or puts Canada behind on Indigenous rights. Canada needs to keep working on Indigenous rights in many different ways and can continue to do that whether this bill in this form passes.
Just to reiterate, I urge amending this bill so it can move forward and achieve its objectives without creating the unexpected consequences. Thinking generally of whatever happens to this bill, I think Canada can keep working on Indigenous rights.
Senator Christmas: I respectfully disagree with you. I think this bill is vital for the implementation of international human rights for Indigenous people.
Senator Patterson: Professor Newman, Bill C-262 seeks to incorporate an international human rights declaration into Canadian law. The words are “with application in Canadian law” in clause 3.
Professor Borrows spoke in the committee of the bill having the effect of setting aside 150 years of litigation. Lawyer Paul Joffe said that after Bill C-262 is passed our laws will have to be interpreted through a framework of international law.
Would you say these opinions suggest that we will be going to a situation, if the bill is passed, where everyone — governments, Indigenous organizations, development proponents — will need to understand and practise international law going forward?
Mr. Newman: I think there would be real value in legal practitioners generally being more aware of international law than they are and being ready to engage in international law arguments when pertinent. That may well be referred out to specialists — just as every lawyer should know about tax law as it interacts with other areas of law but not every lawyer will be a tax specialist. Would the bill have the effect of making every area of Canadian law subject to a layer of international law or an incorporated instrument? I think that depends on the reading of clause 3 that’s ultimately given by the courts. If clause 3 goes forward in an unamended form, I think there is a wide range of possibilities there. The possibility you are outlining is one of those that’s a credible possibility.
Clause 4 and the subsequent sections wouldn’t be exactly drawing on international law but could generate a different type of litigation, I think, that references international law to some extent. There will be consequences for how much international law is used in Canadian courtrooms that could result from this bill, but it depends on what interpretation the courts were ultimately to give it if it’s adopted.
Senator Patterson: Thank you.
The Chair: Thank you for your presentation, Professor Newman. I would like to thank you on behalf of all the members of the committee.
We have to deal with a motion to distribute the letter from John Major in English only.
Senator Patterson: Agreed.
Senator Sinclair: I haven’t finished looking at it. Can we deal with it after the break?
The Chair: Yes.
We are continuing our work on the study of Bill C-262. We are pleased to welcome via videoconference Grand Chief Edward John, Political Executive Member, First Nations Summit.
Grand Chief Edward John, Political Executive Member, First Nations Summit: Thank you very much and good morning from beautiful Vancouver. It’s sunny as usual. I would like to thank you once again for this generous invitation to speak with respect to this particular bill on the UN Declaration on the Rights of Indigenous Peoples.
With yesterday’s release of the Final Report of National Inquiry into Missing and Murdered Indigenous Women and Girls, Canada finds itself in its destiny to deal with its history with Indigenous peoples. To me, it is a very timely reminder of where we are, what needs to be done and what this country should be considering on the steps forward. I have seen over the countless years having been involved with officials in federal and provincial governments is what I call the colonial policy syndrome disorder — the symptoms being denial, discrimination and systemic discriminatory practices.
It’s evident, and in some cases it’s pretty acute for individuals. We have seen that over the course of this country’s history.
One word from yesterday’s report that has been on everyone’s mind is “genocide.” It’s a loaded word and has many implications. The Prime Minister talked about a national action plan to implement the calls to justice by the inquiry. I think it’s a constructive step.
Prime Minister Trudeau, in his opening remarks to the Women Deliver conference, spoke to the word “genocide.” There was criticism yesterday morning in Ottawa that he didn’t use the word “genocide,” but he did. There are 8,000 delegates at this international conference, from 165 countries — including a number of state leaders and a significant number of ambassadors from various states to the UN in New York — sharing this particular message. This is now a global story that people from around the world understand in terms of a significant part of Canada’s Indigenous population being impacted by the historical policies, laws and practices of Canada towards Indigenous peoples.
As I said, Canada is now at a destiny point. Article 38 of the UN declaration reads:
States, in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.
Bill C-262 is an example of that legislative measure to achieve the ends of this declaration by adopting the declaration as outlined in the bill.
Here is Canada’s destiny. I want to recap. In 2008, at the Human Rights Council in Geneva, when all the negotiations were completed after some 25 years in the trenches, Canada had been pretty constructive and supportive. However, at the last minute, under the new government in 2006, under Prime Minister Harper, Canada voted “no,” with only one other state at the Human Rights Council. It was a bit of an embarrassing moment for Canada to find itself in that place.
In 2007, at the UN General Assembly, Canada once again voted “no.” Canada has the dubious distinction of being the only country in the world that has twice voted “no” on this particular declaration.
In 2014, in the outcome document of the World Conference on Indigenous Peoples, Canada offered qualified support for the declaration. However, in paragraph 7 of the outcome document, Canada once again supported that there should be legislative measures to adopt the declaration.
In 2018 and 2019, we see the House has voted in support of the declaration — again with one particular party, the Conservatives, voting “no.” In the Senate, right now it’s a question mark. It would be ironic if senators vote to defeat this bill or act in a way, through procedure, to ensure this bill is not adopted in this Parliament. Would the Conservatives vote “no” again? I’m hoping we are able to convince all senators that it’s important to take a good look at this and see that, in the destiny I talk about, all political parties find themselves on the right side of this vote — not right politically but right in the sense of the moral destiny that we have — and that Canada would support this.
The declaration, as it is, provides for the recognition of collective and individual rights. It provides an important and balanced framework for reconciliation and redress. I use the word “balanced” because it is important. There is a tendency to veer off in one direction when the words “free, prior and informed consent” come up. The declaration contains some 20 provisions that speak to the concept. The notion of free, prior and informed consent is threaded throughout the declaration. It provides that balanced framework that I talk about for Indigenous peoples to be able to make decisions with respect to our futures, lands, territories and resources, and with respect to the right to self-determination that we see in Articles 3 and 4 of the UN declaration.
Article 43 speaks to the rights in the declaration be the minimum standards for the survival, dignity and well-being of the world’s Indigenous peoples — in Canada, the Indigenous peoples in this country.
Article 25 speaks to an important relationship that Indigenous peoples have had throughout our history. It’s about the distinctive spiritual relationship we have to our lands, and that we have responsibilities in this regard to future generations.
This has support, for sure. We know that internationally it has support from many different sources: the World Bank; United Nations Global Compact, which is an industry group based in New York; the International Finance Corporation with Standard 7.
The United Nations has a system-wide action plan to implement the declaration through the UN system. In British Columbia we have the Business Council of British Columbia. The former Attorney General for the Province of British Columbia provided an opinion to the Business Council of British Columbia suggesting that it’s right to support the declaration and that there should be no worry about concepts such as free, prior and informed consent.
The Law Society of British Columbia has set up a Truth and Reconciliation Advisory Committee to provide education to all lawyers, including through law schools and accreditation exams, in order for students graduating from law school to have a full understanding of the implications of international jurisprudence, as well as international customary law, to ensure we take advantage of the broadest network of human rights law that protects, advances and recognizes Indigenous peoples. More importantly, the relationship between Indigenous peoples and Canada in this case.
Those are my comments, Madam Chair. I want to express my sincere appreciation for providing me the opportunity to make these statements. If there are any questions, I will answer them the best I can.
The Chair: Thank you, Grand Chief John.
Senator Doyle: Thank you. I want to ask you a question, Grand Chief, about clause 4 of the bill, namely, that Canada has an obligation to take all measures necessary to ensure its laws are consistent with UNDRIP. The obligation of “taking all measures necessary” seems to be up for debate and unclear.
In your opinion, what does it mean to you? What is the meaning of the obligation and how far should the government go in taking all measures necessary to ensure that its laws are in conformity with UNDRIP? Do you have an opinion that you could share?
Mr. John: Yes. We are under way on that front on a very high level. It’s important that we have seen Canada shift its approach from voting no to the declaration to unqualified support for the declaration. It was a significant moment at the UN. In fact, the minister was given a standing ovation, which is quite unusual at the UN. Normally, it’s a very staid affair and not one where people clap and provide a standing ovation. It showed Canada was on this new pathway to reconciling with Indigenous peoples.
It’s really important to look at the — even the word “genocide” yesterday — but with the founding of the UN in 1944 and the Universal Declaration of Human Rights in 1948, we saw the beginning of a focus on international human rights. Canada was instrumental in developing that declaration in 1948.
We see the beginning of Canada changing its approach toward Indigenous peoples with amendments to the Indian Act of the day, which were highly racist and discriminatory, to bring it in line with the Universal Declaration of Human Rights.
We see a parallel with the universal Declaration on the Rights of Indigenous Peoples that we need to see laws becoming compliant with these international human rights standards. These are minimum standards internationally. Canada cannot pick and choose which standards it can apply or accept, which and what laws.
With the adoption of the universal declaration in 1948, the human rights trajectory, as it were, was global. The federal government amended its legislation to remove some of the most highly discriminatory provisions. We find ourselves in a parallel situation. I was saying the basic principle that ought to apply is that if these matters end up in the courts, for example — and I expect at some point they will — that the laws, politically and legally, should accept and comply with the minimum of standards and that the declaration standards would guide the interpretation of provisions of Canada’s Constitution and laws at one step.
The second step, if there are — and already on that front, we have seen the Canadian Human Rights Tribunal take the declaration standards and apply them in a human rights tribunal hearing. This matter has also been addressed in the federal court.
This is a matter — all measures necessary to ensure that there is compliance — consistent with Article 19 of the declaration where Canada is looking at legislative or administrative measures, that you create a balance in provision by discussing this matter with Indigenous peoples to ensure that there is a balance created in how laws become compliant with the standards in the declaration.
As it is right now, we are discussing this matter with the provincial government in Victoria. We are talking about a provincial bill in addition to this federal bill, that there would be measures here in British Columbia to deal with it.
This is an ongoing matter. There is not a simple answer to all of this, but it establishes a principle with which we can all work.
Senator Doyle: Our notes indicate a number of countries have adopted the declaration over the last 10 years. As far as you are aware, have these countries incorporated the declaration into their laws? If so, what challenges have the other jurisdictions encountered? If they haven’t incorporated it into their laws, why not?
Mr. John: It’s a very important question to see that countries are taking measures. The declaration was adopted in 2007. Immediately following adoption, the state of Bolivia, under President Evo Morales, adopted the declaration in its entirety as a national law. We haven’t seen that country fall apart by any stretch of the imagination.
A number of other states have taken provisions where the declaration has made it into a national law. When I was in Congo-Brazzaville in 2012, they had introduced and I think adopted legislation to deal with the issue of consultation and free, prior and informed consent in dealing with Indigenous peoples in western Africa. The New Zealand government I understand is moving forward.
I don’t have the list that you are privy to. I’m aware, in my role as a member of the UN permanent forum, many of the initiatives which have taken place implementing the UN declaration, there are commitments from the 2014 World Conference on Indigenous Peoples Outcome Document that there would be an international system or action plan through the UN General Assembly to implement the declaration. As well, commitments by state parties, the 192 countries, to develop national action plans to implement the declaration, including legislative and administrative measures such as we have.
Yes, it is global. The human rights standards for Indigenous peoples have found their way into international instruments. The standards in sustainable development goal number 16 talk about the rule of law and the application of the rule of law. The rule of law, inasmuch as these matters are relating to customary international law on Indigenous peoples, have application here. It’s important to recognize and understand that we are on the correct path. Canada is on the right path in moving forward to ensure that it takes steps, as it committed to in the declaration itself, Article 38, and in paragraphs 7 and 8 of the 2014 World Conference Outcome Document.
Canada is honouring the commitments that it made. I implore the Senate members to consider that as you consider what steps are necessary to ensure this particular bill is approved in this Parliament and given Royal Assent.
Senator Doyle: Thank you.
Senator McCallum: Thank you for your presentation, grand chief. I am on the Energy Committee, and in the submission on March 25, 2019, from the First Nations Summit, which includes the British Columbia Assembly of First Nations and the Union of British Columbia Indian Chiefs, they requested that the UN declaration, which was absent in earlier versions of the bill, is referenced in the preamble, though it is still not reflected in the act’s substantive provisions.
Yesterday, I spoke on the impact assessment bill. I made an amendment to remove the United Nations declaration from the preamble into three sections of the act. We will probably vote on that this afternoon.
I want to let senators know that issue 2 in that letter was to align the purposes of the federal act with B.C.’s Bill 51 to support the implementation of the UN declaration. You wrote:
The BC Act expressly states that the purpose of the BC EAO includes supporting reconciliation with Indigenous peoples in British Columbia by: supporting the implementation of the UN Declaration; recognizing the inherent jurisdiction of Indigenous nations and their right to participate in decision making in matters that would affect their rights, through representatives chosen by themselves; collaborating with Indigenous nations in relation to reviewable projects, consistent with the UN Declaration, and 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.
The BC Act also contains a number of important mechanisms to advance this overarching purpose, including recognizing and making space for Indigenous-led assessments.
Given that “one project, one assessment” is a practical reality, and that reconciliation requires reconciliation of respective jurisdictions, it only makes sense to align the federal Act with the new BC regime for predictability and clarity.
Reforms to the BC regime were concluded in partnership and cooperation with First Nations. As that legislation comes into force, it would make sense that the federal Act be applied consistent with the law in BC, particularly given that substitution to the BC regime has been functionally the case since 2013.
Amendment 2: Include a reference to the implementation of the UN Declaration in the purpose provisions that is consistent with the language of the BC Act:
To support the implementation of the UN Declaration on the Rights of Indigenous Peoples and recognize the inherent jurisdiction of First Nations to participate in decisions where their rights are affected, through representatives chosen by themselves.
With B.C.’s Bill 51, what I have heard and read is that it has allowed you to work constructively with the Province of British Columbia. Could you explain that the world hasn’t fallen because of this and that it is such a good step for provinces to take?
The Chair: Grand Chief John, can you hear us?
Mr. John: Thank you very much. There are still some technical difficulties with the video. I think the audio is fine. I heard every word you said, senator.
I am an elected member of the First Nations Summit. I have been with the First Nations Summit as an elected representative for close to 30 years. I’ve been elected for 11 terms. Throughout this period, I have been extensively involved in numerous fronts at the national level as well as the provincial front and in our communities and in the regions with municipalities. We have put tremendous effort into dealing with the business communities, with those who are our neighbours, the municipalities and regional districts as well as the labour councils, the BC Federation of Labour and all of its members. We have taken measures to be proactive and provide solutions.
The three organizations that you mentioned, the First Nations Summit, the Union of British Columbia Indian Chiefs, and the BC Assembly of First Nations, have been working and collaborating with each other diligently. Unanimously the leadership and First Nations British Columbia fully support the UN declaration and the implementation of that and also fully support Bill C-262. I think it’s important to know that.
First, with respect to the provincial bill, Bill C-51, the environment assessment bill, my colleagues and I from the First Nations Leadership Council, we are fully engaged in the development of that particular bill. We assigned technical people through our lawyers and the BC First Nations Energy and Mining Council officials to work through the environmental assessment bill to ensure that we are able to reflect the interest of our First Nations.
As a result, we see the reference, as you mentioned, in the provincial bill and in the environmental assessments. The declaration is a significant part. It took a lot of discussions with provincial Minister George Heyman, with the premier, Minister Scott Fraser and many other members of the cabinet to work towards wording that would reflect the interests that they have. That’s what I’m saying. This is what happened in this case. With the adoption of this particular bill, it would provide for that foundation to ensure that Indigenous peoples are engaged in the development of legislation such as this.
We find ourselves as Indigenous governments in this place of exercising the responsibilities that we have — as I mentioned, Article 25 of the declaration — to future generations. We have a distinctive spiritual relationship with our lands, waters, coastal seas, resources and those responsibilities carrying on to future generations.
I want to say “thank you” to the provincial government for being open to this and not running in the other direction as they could have. They didn’t. They engaged us fully, upfront and in an honest way to find practical solutions that we need for environmental assessments in British Columbia.
In that regard, we made suggestions to some amendments that could be constructed in the federal bill. I’m glad to hear that the three amendments — I’m not sure which specific amendments you refer to — would be voted on.
With this particular bill, Bill C-262, I’m hoping that it proceeds without amendments. Procedural delays can kill this bill and not be given Royal Assent by the time this Parliament rises. It causes us a lot of concern. This is part of the destiny that I talked about in Canada’s future, that Canada can take this proactive step and be a world leader.
Canada is seen globally as a world leader on many fronts, including now on the Indigenous front. Prior to this government, during the tenure of the last government and the last prime minister, Canada was seen pretty much as a pariah on Indigenous issues at the international level.
I’m not playing party politics here as such. I’m just giving you an assessment of what I hear and see from my colleagues internationally, including state actors, state party representatives from around the world, that we see Canada moving in a very constructive way.
I appreciated the Prime Minister’s presence on September 21, 2017, at the UN General Assembly when he took very much his entire time to talk about Canada’s relationship with Indigenous peoples. I think no state representative or leader has ever done that. We see this as an important measure that Canada has taken.
As senators, now you have this bill in front of you. It’s a step in the right direction. As you put it, it’s a constructive step, a transformative step. At the same time, it’s a balanced step that we need to be mindful of.
Senator, thank you so much for that. I appreciate it.
Senator Patterson: Thank you, Grand Chief John. I agree with you. We should take a very close look at this bill.
You stated recently in The Province:
Whether at the federal, provincial or territorial level, implementation legislation will not suddenly override Canadian laws, as some commentators seem to fear.
We have just heard from Professor Dwight Newman of the University of Saskatchewan. He gave a brief to this committee. He commented on “the highly unpredictable effects of the bill,” particularly in light of clause 3, which states that UNDRIP “. . . is hereby affirmed as a universal international human rights instrument with application in Canadian law.”
Professor Newman says:
While similar language would exist in preambles, I could not find any precedent for such language in the operative sections of any past statute as it would be in s. 3 of Bill C-262. The concept of UNDRIP being given immediate “application in Canadian” law raises many uncertainties and could raise questions about if Bill C-262 would immediately invalidate parts of other Canadian statutes and/or would be hemmed in in its aspirations by subsequently adopted statutes.
Why do you believe that Professor Newman’s concerns are legally invalid?
Mr. John: Professor Newman is entitled to his opinion, as wrong as it may be. I do not agree with him. To me, it’s a bit of a scare tactic strategy that is not well founded.
I do not see it as highly unpredictable. I just gave you an example of the measured approach and discussions that we have had with the province in the development of Bill C-51, the environmental assessment bill, the discussions that we are now having in developing the draft provincial legislation to adopt the declaration.
Simply because there is a bill that has the potential and the conflict, there are ways and means to find resolution to ensure that those parts of a bill that are offensive find their way into a place of discourse. To ensure and to have discussions about how those measures, in a particular piece of legislation, may be modified to ensure compliance with these international standards.
We’re talking about Canada becoming compliant with international standards. We have seen Canada’s laws historically have been highly discriminatory and problematic. Now we have the UN declaration against which we can measure Canada’s approach in dealing with Indigenous peoples. They are measures against which Canada can find out whether it is meeting the minimum standards, human rights standards, in the United Nations Declaration on the Rights of Indigenous Peoples as well as other international human rights instruments.
Many of the provisions in the 46 articles in the declaration find their roots in other international human rights instruments. The declaration in and of itself does not create new rights. It puts into one instrument these international human rights norms, standards and principles into one document called the UN Declaration on the Rights of Indigenous Peoples.
I have to say that I completely disagree with Professor Newman. In my opinion, it’s highly inflammatory to suggest that.
I talked about the declaration as being a balanced provision. When I look at the declaration, Article 46 has three provisions. It talks about the declaration, which would not “dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”
However, it goes on that this declaration:
. . . shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.
Now, tell me that that is offensive. I don’t think so. Tell me whether that process that described in Article 46(3) would lead to the invalidation of Canadian laws.
Canadian laws will be challenged, yes, if they are found to be discriminatory. As we have seen, even our Supreme Court of Canada has made findings and rulings in respect of these matters.
In Federal Court of Appeal in the TMX case very recently, under section 35 of the Constitution, found that the process by which that particular project was approved was found to be discriminatory and did not meet the standards set out by the Supreme Court of Canada in a number of prior cases.
That it will hold this country accountable to its actions that impact on Indigenous peoples is a constructive step, as Senator McCallum stated earlier.
Senator Patterson: Thank you, Grand Chief. I was intrigued by your description of colonial policy disorder, I think you said. I would like to ask you about that as a long-time observer of Aboriginal rights issues in the country.
In December 2018, no less than the Prime Minister of Canada came out and announced an Indigenous Rights Framework. There would be a framework bill introduced before Christmas — that would have been last December — in order to have new legislation in place by the fall federal election. The new legislation policy would make the recognition and implementation of rights the basis for all relations between Indigenous peoples and the federal government moving forward. There was a commitment then to review every law on the books.
Then the establishment of the Ministry of Crown-Indigenous Relations was condemned in some quarters as divisive, and there was a call to use UNDRIP as the framework. Then it seemed like the federal government began what was described as a piecemeal approach with the K-12 education formula, Indigenous child welfare legislation, Indigenous language legislation, and the reorganization of the department to reflect a less colonial approach.
With reference to colonial policy disorder, would you say we’re in that state today with conflicting signals from Canada about whether we’ll do a made-in-Canada Indigenous rights framework, or a made-in-Canada Crown-Indigenous relations process, or shall we hitch our wagon to international law through UNDRIP, or are we doing all those things at once? Is that the disorder you’re talking about?
Mr. John: Yes, what I call the “colonial policy syndrome disorder.” I speak to the relationship. I’m a doctor — honorary, not a real medical doctor — so I figure as a holder of honorary doctorate degrees — two of them, actually — I came up with this diagnosis called the “colonial policy syndrome disorder.” It’s one that says happened in history. It’s not in our policy, or you know, these are attitudes and behaviours that we see too often in the official world of government across this country. Maybe to provide a name to it will cast a different character to this.
It’s really trying to find that Canada needs to come to a different place of relationship, as the Prime Minister said in Vancouver yesterday, the steps that are needed.
Your reference to the commitment to establish a new legislative and policy framework for the relationship that was committed to on February 14, 2018, in the House of Commons by the Prime Minister. In this province, we developed an extensive set of recommendations. The First Nations in this province came together and developed what we call “drafting instructions” that would form the basis of our discussions with Canada to develop legislation. That never materialized. The Prime Minister talked about this being done in partnership with Indigenous peoples. That partnership, I think there is room for that. There were some provisions. There were some reservations about two things. One was about the process in which that framework was being developed. Many saw it as unilateral. Second, there were two ministers assigned to do this work, the Minister of Justice and the Minister of CIRNA. I’m not sure what happened there for those two key federal departments to work together in collaboration.
The legislative framework, by decision of cabinet in the fall, I understand, has not proceeded. In this province, First Nations were still open to the idea. It was not a national legislation; perhaps provincial legislation is in order.
Secondly, with respect to policy, what will the policy standards look like? For example, the inherent right to self-government policy, and the comprehensive claims policy, to name two key federal policies, were developed unilaterally by the Crown, highly offensive in many respects, and highly supportive of only government positions and did not reflect what the Supreme Court of Canada decided in many cases.
Let me give you an example. One of these is the question of Aboriginal title. In two key Supreme Court decisions, Delgamuukw and Tsilhqot’in, the Supreme Court of Canada talked about Aboriginal title that exists in British Columbia. We’re saying that Aboriginal title must exist in the territories of every First Nation in British Columbia in and to their lands. Secondly, the Supreme Court of Canada said that Aboriginal title is a legal interest in land, and that the Aboriginal peoples can make decisions with respect to these legal interests. And that this legal interest, Aboriginal title, has an inescapable economic component.
This province and country generates its wealth based on the development of resources, whether it’s oil and gas, forestry, fisheries or water resources. For us, that inescapable economic component means we have the ability to raise revenues, based on the legal rights we have called “Aboriginal title.”
We find this place in the development of a new policy framework to meet there. In the Supreme Court of Canada in the Haida case, Haida versus the Province of British Columbia, the court said — and they weren’t shy about it — treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty. This is the large debate. This is a destiny that I was talking about earlier, that with the pre-existing sovereignty of the Indigenous peoples and the assumed sovereignty of the Crown governments, we now need to find this place of reconciliation and how we do that. What measures do we use to achieve this reconciliation that the Supreme Court of Canada speaks to?
The Chair: Thank you.
Senator Lovelace Nicholas: Just a quick question, Grand Chief John. As you know, the government has a fiduciary responsibility to Indigenous people. If this bill passes, will the bill require the government to honour this responsibility?
Mr. John: That’s an important question. The fiduciary responsibility and the relationship was decided in a very important case from British Columbia called the Guerin case. Now the Guerin case comes from the Musqueam and First Nations community. That particular decision laid an important legal and constitutional principle for the relationship between the Crown and Indigenous peoples.
Legislation cannot change the nature of that fiduciary relationship. It will always exist, even if you negotiated agreements. For example, if you have modern land claims agreements, that fiduciary relationship continues to exist. It finds its roots in the origin of Canada as a state, in 1867 and as a colonial entity prior to that, that the relationship was established in proclamations like the proclamation of 1763. It’s important that we recognize that this is an historic relationship that Canada has with Indigenous peoples.
In fact, in the Organization of American States, the 34 countries in the Americas have that same relationship with all Indigenous peoples. Some of these are founded in treaties, some in agreements and some in other constructive arrangements as identified in Article 37 of the declaration.
Yes, the relationship will always exist. That it’s determined to be fiduciary relationship, that relationship will continue. As we have seen in the United States, the Supreme Court there has determined and termed that relationship as a “special trust relationship” between the American state and the Indigenous nations in that particular country.
Senator Lovelace Nicholas: Thank you.
Senator Tannas: Grand Chief John, thank you for being here.
I’m troubled by something. I would like to know if you are as well. I don’t understand why the Prime Minister spoke about this in 2017. Why didn’t the government initiate this bill? Why is it that a private member’s bill containing unused language from any other statute, what’s been called “novel language,” inconsistencies between French and English — why would we be dealing with a private member’s bill rather than a government bill? Why would the government have initially said the bill was unworkable, in the words of then Justice Minister Wilson-Raybould?
If this was a government bill as it should be, we would not be in this situation. We would have clear wording. We would have clear wording that is created and backed by the full weight of the Justice Department. We would have had the Prime Minister and his ministers out across the country talking about this bill and what it means for Canadians and why they should support it.
We don’t have any of those things. Instead, we have a private member’s bill drafted with virtually no resources behind that person bravely pushing it along through Parliament, finally picking up some momentum from the government after all their other initiatives have fallen away. However, they still did not adopt it. They still did not take it over, like they have other private members’ bills, to put their weight behind it. They let it go through.
I have been on this committee for six and a half years. The last three years and 10 months we have seen a number of symbolic things where execution fell way short.
Does any of this trouble you, that we find ourselves in this place where, in fact, a small group of senators can make sure this bill never sees the light of day, if they feel it is their duty to do so on behalf of Canadians, rather than a government bill that could have long ago been passed with appropriate debate and resources, and the appropriate support of not just the government but of Canadians having had it explained to them?
Mr. John: I’m always troubled when it comes to politicians and governments, so it’s not a surprise to me. You point to the question of commitments and the honouring of those commitments by the government. As you put it, the execution has fallen short. Many of the comments my colleagues make are that we need to see commitments turned into action. That’s why, however, that action is undertaken is important.
We have seen over the last several budgets, for example, an increase in resources to our communities. This is absolutely welcome, because it is needed. We have to deal with the gaps we are faced with in terms of socioeconomic and day-to-day poverty issues.
For almost 30 years I have been involved in the process of negotiating land rights in British Columbia. We have had governments of two stripes, blue and red, under which we have fallen short over the last 30 years. We have had to borrow $1.4 billion collectively to negotiate land rights and self-government in this country. I’m hoping this budget implementation bill gets the approval of senators and that it’s enacted into legislation before this house rises.
The $1.4 billion is forgiven to those First Nations who have borrowed money. My own community has borrowed just over $2 million. Through a commitment by the government, that loan will be forgiven and we don’t have a debt. It’s been a burden on our books, particularly in relation to talking to business enterprises about opportunities to create jobs and businesses for our people so that we could have employment.
In a way, the horse is now out of the barn. It would have been preferable to have a federal government bill, for sure. We pressured the former Justice Minister to support this particular bill. At the end we saw that there was no federal bill forthcoming.
We pushed hard for the federal government and the Liberal Party to endorse this bill. In the absence of any other bill, this is a bill that we have supported. I want to extend my thanks and gratitude to Member of Parliament Saganash for moving this forward — given that he had limited resources, as you put it — and to find that this bill is likely a minimum approach to this particular initiative that is under way, the implementation of the declaration as it’s written out in this bill.
The First Nations in British Columbia fully support this bill. We hope senators will see likewise. I’m aware that there has been a fair amount of discussion. Senator Sinclair has been a strong advocate, as have many of you. We hope this house of sober second thought will take the initiative to do right by Indigenous peoples and approve this bill.
Senator Coyle: Thank you, Grand Chief Dr. John. Thank you for your diagnosis of colonial policy syndrome disorder. Now, together, we are looking for remedies for that disorder.
Thank you also for giving us comfort in identifying the balance you find within the declaration itself. I think that is important for us to look at.
We, as a country, need to move to a different place, as you and our Prime Minister and others have said, in terms of respectful, trusting relationships between Canada and Indigenous people. We, as a committee — and then we, as the Senate as a whole — always have to balance consequences.
Could you please summarize briefly the consequences, as you see them, of our passing this bill, and the consequences of our not passing this bill?
Mr. John: I think the consequences of not passing would once again reflect how Canada was seen when it voted “no” at the General Assembly in New York in 2007, and when Canada voted “no” in 2006 at the Human Rights Council in Geneva. Canada was a member, and it then qualified support for the United Nations World Conference on Indigenous Peoples in 2014 and made a commitment that it would act on Article 38 of the declaration to take measures, including legislative measures, to meet the ends of the declaration.
This particular bill helps Canada’s commitment. I think it would reflect badly on Canada and on the Senate. The majority of members of Parliament have supported this bill. In terms of the consequences for our communities, there are minimum standards in the declaration that deal with all measures, as your colleague senator spoke to with regard to Bills C-91 and C-92, the Indigenous languages bill and the Child and Family Services bill.
I want to say that those two bills taken together really address one fundamental dilemma that our people have faced, and that arises from the Indian residential schools. I went to for many years. It impacted our languages. Our languages were forbidden to be spoken in these places. We started losing our languages to a point in British Columbia where all of our languages are endangered.
Second, the removal of children was by design. Former Prime Minister Stephen Harper said, in his apology, that we found that Indigenous peoples’ traditions and customs were inferior to ours, and that’s when we removed children from the language, community, parents and the land. It was designed, as he put it, to kill the Indian in the child.
These two bills taken together now help address this historic burden that our people continue to face. Again, I understand that those two bills will find their way, hopefully, to being proclaimed as part of Canada’s laws before the end of this Parliament.
I really appreciate your question around the consequences because now it provides for us a foundation where we can engage with governments, the Canadian public, industry and developers in our territories on a solid foundation of who we are and the places we come from as Indigenous peoples.
Senator Coyle: Thank you.
The Chair: We have come to the end of our time with witnesses. On behalf of the committee, Grand Chief John, I would like to thank you for appearing before us and sharing your words.
We have two motions to go through before we adjourn. The first is from Senator Christmas.
Senator Christmas: I move that on Wednesday June 5, 2019, that the committee proceed to clause-by-clause consideration of Bill C-262 after the conclusion of the witness panel.
As committee members are aware, we had approved a motion on Tuesday, May 28, to study Bill C-262 with four meetings. As you know, our fourth meeting will be tomorrow, June 5.
In keeping with the committee’s direction, this motion clarifies that we will conclude the committee’s consideration of Bill C-262 on June 5 by proceeding to clause-by-clause consideration of Bill C-262 after conclusion of the witness panel.
The Chair: Thank you.
Senator Tannas: I suspect we will have some amendments. They should be given due consideration. I would propose an amendment to Senator Christmas’ motion. I understand the timing. We need to deal with this.
We have important witnesses tomorrow. If we can get agreement of the whips, we should try to find a time on Thursday morning where we could spend an hour working through clause-by-clause in and of itself.
I would propose that we move to clause-by-clause on Wednesday night in the absence of permission from whips to do so on Thursday before the Senate sits.
The Chair: We have an amended motion.
Senator Patterson: I would like to speak in support of the amendment. We have a long-standing tradition of not rushing clause-by-clause during a day where we hear witness testimony. All this testimony is important. There is real merit to seeking extra time, especially if, as was suggested by one witness this morning, and by Senator Tannas, there are going to be important amendments introduced.
I would like to speak in support of the motion. I understand it depends on the agreement of the whips. Is that correct, Senator Tannas?
Senator Tannas: Yes.
Senator Patterson: It’s a possibility. We all agree this is a very important bill with significant implications. I support having a little more time this week to look at the clause-by-clause consideration and point out that it will meet the general objective that we agreed on to conclude our work on this important bill this week.
I was concerned our proceedings were rushed. I don’t think asking for the possibility of another meeting is unreasonable. Thank you.
Senator Sinclair: Thank you. The intent of Senator Christmas’ motion, of course, is to implement the decision of this committee that we made on the very first day of this proceeding. It’s quite appropriate.
Senator Tannas’ amendment would, in effect, try to change the original decision of the committee, being that we would do this within four days. Now he’s suggesting let’s try for five days and see if the whips will agree to let us go on a fifth day. Then we can try to fit our discussion around the amendments into another period of time, which would, in effect, ask us to review and reconsider what we originally decided. I, therefore, don’t support the motion.
I think the original motion was clear — that there was a plan in place, and we were going to do it in four days. We should try to do it in four days.
The concern I have always had with regard to this bill is not that it’s being rushed, but that it’s been deliberately delayed by the opposition. That’s why we are in this pickle, so to speak, in that all of the things that have been done in order to prevent the matter from getting to committee have resulted in this committee now being faced with a very serious time crunch. Dealing with the time crunch is now our responsibility; so let’s do that. I suggest we vote against the amendment.
Senator Christmas: Senate Sinclair mentioned what I was going to mention. Unfortunately, we don’t have the time. I wish we had the time. I agree with you, Senator Tannas, this is a very important issue, but at this late stage, I agree we should stay with our original schedule.
The Chair: Are we ready for the question?
Senator LaBoucane-Benson: After we hear our witnesses and start clause-by-clause, is there any time limit that would prevent us from meeting as long as we need to to get through clause-by-clause Wednesday night ? Is there a time limit that would be imposed on us?
The Chair: No, not really.
Senator LaBoucane-Benson: Thank you.
The Chair: Are we ready for the question on the amended motion?
Senator Sinclair: On the amendment?
The Chair: All those in favour of the amendment? All those opposed? The amendment is defeated.
We’ll go back to the original motion.
All those in favour, please raise their hands. All those opposed? The motion is passed. Carried.
The second motion is from Senator Tannas.
Senator Tannas: In six and a half years, I think that’s the first vote I have ever participated in in this committee.
The Chair: No, it isn’t. We voted last week, too.
Senator Tannas: You are right. Second.
The Chair: Only on this bill.
Senator Sinclair: Are we dealing with the letter? I’m okay with it being delivered in English only. I understand ultimately it will be translated. If there are no objections, the sooner people can look at it the better, and we’ll have an opportunity to discuss and consider it before we get into this issue around amendments.