Thank you, Mr. Speaker. Your Special Committee on Reconciliation and Indigenous Affairs is pleased to provide its Interim Report: What we Heard about the United Nations Declaration on the Rights of Indigenous Peoples and Negotiating Agreements, and commends it to the House.

Mr. Speaker, the chair of the committee, the Member for Inuvik Twin Lakes, has asked me to read the executive summary today. But I would like to thank her, and all the members of this committee, for their work.

Executive Summary

On October 29, 2020, the Legislative Assembly unanimously passed Motion 21-19(2) to establish a Special Committee on Reconciliation and Indigenous Affairs. The Assembly tasked the Special Committee to seek and encourage discussion and recommendations on opportunities and challenges in meeting the Assembly's priorities.

The Special Committee began work on December 4, 2020, and has since held 15 hearings. Throughout 2021, Committee heard from legal experts, scholars, researchers, Indigenous governments and nations, and the Government of the Northwest Territories.

Five public presentations by experts and scholars are available on the Legislative Assembly's YouTube channel. Committee received ten in-camera hearings, including eight from Indigenous governments and organizations, and two from the GNWT.

We are not identifying individual voices in this interim report unless explicitly advised that we can share the information publicly. We respect the confidentiality requirements of ongoing negotiations and the confidentiality commitments of the Indigenous governments and nations.

The report is organized into four chapters summarizing what we have heard so far. Chapter one arranges the information received from experts and scholars and provides an overview of discussions around the implementation of the Declaration. Chapter two summarizes what we heard about existing key challenges in applying the Declaration in the NWT, and Chapter three encapsulates the key challenges in concluding agreements in the NWT. The final Chapter lists areas for potential future recommendations by the Special Committee.

What We Have Heard about the Declaration

Themes that emerged when Committee listened to experts, scholars and Indigenous governments and organizations reflected many discussions taking place in the Canadian context. These discussions included observing the Declaration as a minimum standard for human rights and as a tool for self-determination. The Declaration was acknowledged as designed to be a global benchmark, while some suggested that it was not intended to be a specific legal instrument to be directly implemented as law.

Discussions about the Declaration

Committee heard implementing the Declaration's Articles should not be seen as the end goal but rather the beginning of the effort.

We heard that challenges arise when aligning the Declaration, an international human rights document, with domestic law. Adopting the Declaration in domestic legislation has been criticized as too vague and noncommittal. It has been described as misleading in that it would make promises that cannot be kept, thereby taking the risk of repeating the cycle of broken promises, particularly promises broken by governments.

Committee heard fundamental disagreement on whether the Declaration is legally binding. It has been pointed out that it is an aspirational document designed to be a global benchmark for Indigenous rights but is not considered law and, therefore, not legally binding.

Others noted that viewing the Declaration as aspirational ignores its intent: to guide action. We learned that customary international law applies directly unless expressly stated otherwise. Human rights treaties must be implemented through domestic legislation either implicitly or explicitly.

We heard that in the NWT, the Declaration might serve different purposes for different nations:

• For those that pursue self-government agreements, the Declaration may serve as a replacement for the GNWT's Core Principles and Objectives.
• Treaty holders may use the Declaration to identify and fill gaps in implementation. Committee heard that modern treaty implementation and self-governance agreements are at a critical point in the NWT, and processes to secure funding will require rethinking to ensure the treaties and the Declaration are fulfilled.
• On the other hand, we heard that the Declaration may distract Modern Treaty holders from continuing treaty implementation and may impede further progress on a path that has seen considerable investment in the past.
• For those without land agreements, the Declaration would allow land rights and self-determination. Nations without land agreements expressed the desire to develop their own mechanisms and processes to move land agreements forward.
• Committee heard that openness is needed toward more progressive and contemporary co-management approaches that include renewable and non-renewable resources. The NWT's co-management institutions have developed from arrangements under modern treaties and may not be a workable model for areas without land agreements or reserve lands.

Challenges in Declaration Implementation

• International human rights obligations and domestic law: We heard concerns about the fundamental compatibility of the basic principles of the Declaration with the existing jurisprudence in Canada. Different views exist on the future approach to address the complexity of section 35(1) of the Constitution Act, 1982. We also heard about confusion amongst Indigenous rights holders about this section in relation to rights under other laws.
• Options for Implementation: We heard that implementation may be more manageable if the Declaration was broken down into applicable sections. This process would avoid ambiguity, better allow incremental allocation of resources and would put meaning behind each Section with specific mechanisms.
• Implementation by Law: Scholars have cautioned that confusion could arise if a divergent variety of implementation laws are developed in regions and across the country. Should all provinces, territories, and municipalities develop laws in addition to federal law that makes commitments to the rights of Indigenous people, the question would be how to ensure the process is harmonious. This would likely be more applicable to the Territories than to some of the provinces.
• Co-developing legislation: Committee heard that co-developing legislation is the realization of reconciliation. However, how to arrive at the result of co-development is not entirely clear. For some, past examples of co-development of legislation in the NWT were not sufficiently inclusive and in compliance with the Declaration principles. Others regarded the process used to develop the laws as examples of consent implementation and government collaboration.
• Legislation and Consent: We heard that the core question of the Canadian debate on consultation is whether, or possibly to what extent, consent would be needed to achieved before developing legislation to implement the Declaration which requires consent.
• Consent and Self-determination: Consent has been accepted as a key principle of the Declaration, intended to enable Indigenous self-determination. In discussions about consent, we heard that the principle of free, prior and informed consent, known as FPIC, can be perceived as a vehicle to advance long-term relationships and allow for the coexistence of a plurality of legal orders. Committee was told not to underestimate the role of FPIC in establishing a different and positive relationship between Indigenous peoples and non-Indigenous segments of society.
• Consent and Consult: Disagreements exist on the achievability of FPIC in relation to rights under the Canadian Constitution Act. And while free prior informed consent is the tool intended to make self-determination happen, tensions exist between efforts of defining the terms and interpretations of the broader goal of Indigenous participation and protection of rights.
• Operationalizing Consent: We also heard how consent could be operationalized through Declaration legislation. Examples of operationalization include creating leadership tables, secretariats, and joint cabinet-Indigenous committees. Other examples include processes outside of Declaration legislation such as modern treaties, the regulatory regime and assessment processes, Indigenous-led assertion and enforcement, or through the courts.
• Contentious Articles: Committee heard that several Declaration articles might be contentious in their relationship to the Canadian Constitution Act, 1982. We heard that Articles 26, 32, and 46 have been particularly contentious.
• Monitoring of implementation: There are no independent bodies to monitor how governments will perform in implementing and applying the Declaration. It has been said that this will lead to interpretation gaps in implementation.
• Regional and inherited approaches: We have heard that some fear that the Declaration may interfere with existing agreements; others pointed out that the Declaration will help realize inherent rights and reconciliation. To understand the situation of Indigenous nations in the NWT, we were told to look at the historic treaties, and the extinguishment of rights and modern land agreements.

We heard that existing representative bodies may not align with current views of authority and self-determination, and existing agreements may not fulfil the views of land rights and self-government.

Challenges in Negotiations

• The slow pace of negotiations due to increasing complexity of agreements, frequent leadership changes, the desire for legal certainty and to be comprehensive, as well as the increasing size of negotiations all raise the challenges.
• Negotiation mandates: Indigenous nations perceive themselves as being stuck in a negotiation structure inherited from the past, with little room to move forward or break out of. The GNWT was described as having been inflexible in the past. All NWT witnesses agreed that governments need to get away from the fixed and predetermined principles at the negotiation table, be more flexible and not change core principles and objectives unilaterally.
• Competing interests: Overlap in land use combined with the absence of land agreements, we heard, created an untenable and undesirable situation.
• Finding a way forward: Despite, at times, the critical language describing the past and current experiences of negotiations in the NWT, we were inspired by the positive and forward-looking tone used by all witnesses.

We heard a deep sincerity in seeking and finding solutions to the challenges of the status quo. The diversity among NWT Indigenous governments and nations was noted as an opportunity to build on what has proven to already work in the NWT. Examples included existing collaborative models of governance and legislative co-development.

Mr. Speaker, I would like to thank all of the presenters of the committee and all of the committee members for their work. This is simply the interim report. We look forward to many (audio) and to future recommendations to this Assembly. Thank you, Mr. Speaker.