 Welcome to this very special hearing of the Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. My name is Julian Leaser. I'm one of the co-chairs of the committee and I'd like to start by acknowledging the traditional owners, the Ngunnawal and Nambri people, and pay respects to their elders past and present, and pay also respects to any other Indigenous people in the room, both from Australia and around the world. This is a particularly special place in the history of Australia, obviously the former House of Representatives chamber, and 20 years ago I sat where Kevin is sitting as a delegate to the Constitutional Convention, the last time we had major discussions about constitutional change in this country. So it's really wonderful to be back here today. On the committee with me is my co-chair, Senator Patrick Dodson from the Labor Party from Western Australia, Lou O'Brien, a National Party member from Queensland, Linda Burnie, a Labor member from New South Wales, and Senator Rachel Seawatt, a Greens Senator from Western Australia. So we are a multi-party committee. The committee was established by the Australian Parliament to progress the national recognition of Aboriginal and Torres Strait Islander peoples, and our work is informed by the regional dialogues undertaken by the referendum council last year, which culminated in the Uluru Statement from the heart. As you'd be aware the Uluru Statement recommended the First Nations voice to the Australian Parliament. Our work's also informed by the earlier work of the 2015 Parliamentary Committee and the 2012 Expert Panel on Constitutional Recognition. This hearing is being broadcast on Parliament's website, I understand it's being broadcast live, and transcripts of the proceedings will be published on the Parliament's website as well. Those present here today are also advised that filming and recording are permitted during the hearing, and I'm also to remind members of the media who may be present or listening on the web of the need to fairly and accurately report the proceedings of the committee. This is a normal hearing of the Parliamentary Committee, even though we are out of the building of the Parliament. Although the committee doesn't require you to give evidence under oath, let me say to all witnesses, I advise you that this hearing is a legal proceeding of the Parliament and therefore has the same standing as the proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt for Parliament. The evidence given today will be recorded by handside and attracts parliamentary privilege. Before I ask some of the international guests to make a statement, I also just want to acknowledge and thank the ANU and the other organisers of today's First Nations Governance Forum for allowing us to hold this session here as part of their conference, and also to thank the wonderful international speakers who'll be able to help us with our deliberations here. I'd like to invite delegates and other participants, if they're speaking to the committee, to introduce themselves prior to speaking. What I might do is we have four delegates who have indicated they'd like to speak to us, and might ask them each perhaps to make an introductory statement, and before they do so, just introduce themselves and tell us who they are and where they're from. So we might start with Daly, please, and go around the table and then we'll put some questions, if that's okay. Okay. Rihanna, first of all, I too would like to acknowledge the traditional owners of this unceded territory as well as all the other Aboriginal and Torres Strait Islanders across the land and more power to them in relation to their unceded territory and their unceded sovereignty. My name is Daly Samodaro. I am a professor at the University of Alaska Anchorage. I have a history of engagement at the international level, in particular in relation to the UN Declaration on the Rights of Indigenous Peoples, as well as the revision of ILO Convention number 169 and other various different international fora. I presently teach in the Department of Political Science at UAA in the subfield of international relations, and I'm very pleased to have been invited to offer some remarks and appreciate the lack of preparation that I've had. So I'll hand the microphone off to Brian. Thank you. My name is Brian Crane. I'm a lawyer from Canada. I have a practice which is mostly Aboriginal law, and over my many years at the bar in Ottawa, I have worked on many appeals to all levels of court, including the Supreme Court of Canada, and I've also worked in the negotiation of native land claims in Canada and in the negotiation of self-government agreements. Thank you very much, and I share the honour of being on unceded Aboriginal territory here in Australia. I appreciate the chance to speak to you. My name is Ken Coates. I'm a professor of public policy at the University of Saskatchewan. I'm from the Yukon in the far northern part of the country, which is one of the areas which has the most experience with modern treaties and the negotiation and implementation of modern treaties, and I specialize in Indigenous rights and the implementation of treaties and constitutional arrangements in Canada. Thank you. And I, too, start with expressing my gratitude to the traditional custodians and owners of this land, and that they accept me as a guest here, and I also pay my respect to elders, past, present, and future, and thanks also to the committee to allow me to appear before you. My name is Matias Oreh. I come from Sweden, from the Somali people there, a reindeer herding community originally, and I'm now a professor, although at the Arctic University of Norway in Tromsø. Norway, I, too, have participated for many, many years in international processes on Indigenous peoples' rights, and I'm also advocating Somali peoples' rights domestically in particular when it comes to rights to land and resources. Thank you. I might just ask a general question and perhaps pose to Matias and go back round, and then I'll hand over to colleagues. What do you think are the learnings from your particular jurisdiction in terms of pitfalls and strengths of the approach that's been adopted to consult and engage Indigenous people on policy in the same way that we're attempting to do with the potential voice proposal? What other learnings we can take about engaging and consulting Indigenous people from your mechanism in your country? I think the principal point I would say, really to start, perhaps at the bottom, but at the basic, that it's taken many years, I think the experience of the Somali are similar to the Aboriginal peoples of Australia, but we are now at a point where you have formal and, I would say, honest recognition of the Somali as an Indigenous people with self-determining rights, with the right to have their voice made in all matters concerning them, including at the highest level that would mean the parliament and the government, and I think a general recognition among the Swedish population, if I keep to Sweden now, even though the Somali live in four countries, that this is actually beneficial to the country as a whole, also to the Swedish population, and that there is a general understanding of that, that we try to move forward and that this is not dangerous, this is actually helpful, and really, really creating an environment where you can respect the right, the Indigenous rights of the Somali in this case, at the same time that this need not be of detriment to the country as a whole. That's a really quick observation, and we're getting dangerously close to a culture of over consultation in Canada. Too many committees, too many meetings, the impact on Aboriginal folks is amazing, they don't get enough time, they don't get the resources to actually prepare properly, and when you add in the financial economic resource development consultations on top of all the policy ones, it becomes a real challenge, so it has to be a question of balance. I think we have to also recognize that the thing that distinguishes Indigenous policy in Canada is consistent policy failure. There's not a lot of strong background to say, wow, aren't we lucky, we get to help develop policy. Policy has been a hammer that's been used for 150 years, and so the whole concept of being involved with policy development is something a lot of Indigenous people in Canada view as some great concern, because it's a means of control and oftentimes manipulation. That said, you will not get a substantial improvement in government policy, an outcome from government policy without engagement. It's happening now. Canada I think is moving toward what I describe as a co-production of policy model, where even in the allocation of resources and budgetary considerations, there are right now at this point behind the scenes an informal consultation, and the policies that come out have actually been, I want to say, prior approved that doesn't really capture it because there's no formal approval mechanism, but you'll find in the last couple of years in particular the Indigenous folks have not been reacting negatively to policy formulations because they've actually been involved in developing them and in setting priorities, and I think setting priorities is perhaps as much as anything else, and so I think the final thing I would say is that in Canada we're actually learning to trust Indigenous folks, to trust them to manage their own affairs which has been a long time coming, trust them to make informed and useful contributions to Canada as a whole, and I think one of the things we're discovering is that Indigenous expectations around consultation are expanding beyond their immediate, their immediate issues to other national issues, and that's been quite fascinating as well. Ken, could you just explain the how in terms of consultation just before we get to Well, first off, the major part of consultation is having a government official show up in your community with a briefcase and a suit, and say I'm here to consult with you, and these are, you know, formalized meetings with communities, with band councils, and things of that sort. We have a lot of those going on. The Assembly of First Nations and the other national Indigenous organizations meet with government. They used to do it in a highly politicized environment. They're doing it much more in a quiet behind the scenes sort of process now, and they're actually taking, there've been a series of issues on, for example, resource revenue sharing and on resource development where they actually joined a joint committee of Indigenous Affairs in the House of Commons and actually then with the Indigenous organizations to plan together the best way of going forward. So it exists at a whole bunch of different levels. When I talk about over consultation, to me that means yet another government official coming to the community yet again to have another conversation. That is wearing and the amount of, you know, of the time and resources to prepare for it. The other, the national and regional level consultations are going much, much better, and we're now, the federal government is trying to regionalize them. They've moved away from the idea there's a single national policy that will work for everywhere, and they're moving toward this idea of what find regional groups. They might be cultural-centered, they might be geographically-centered, and those kind of more informal but very intense sort of policy development processes are, I think, proving to be quite, quite successful. I just wanted to say that there's a very big legal dimension to the consultation debate in Canada, and that is that in 2004, the Supreme Court in a case called Haida, the Haida people from Haida, Guay, and western British Columbia, decided that government could not approve an authorization for a tree license without consulting with the Aboriginal group. Prior to the Haida case, consultation had been not regarded as a legal duty, but an important public policy should be followed. In the Haida case, the Supreme Court said, no, it is a duty in a case where the Aboriginal group has made a claim, even though the claim may not have been resolved by the courts, even though there may be a debate as to whether it was a solid claim or not, if there is a reasonable prima facie claim, then the government has the response, and government must approve the project, then government must engage in consultation, and that rule has sort of overlaid all the consultation activity. Now industry and mining industry, oil and gas, natural resources, renewable resource energy, all of those projects now, the industry is going directly to the communities as a first step, and is engaging in consultation in advance of the approval, and so it's almost, it's now, it's built in to the approval process. All administrative tribunals have a duty to consult, to see that consultation has been done. Is there a specific mechanism they have to use, or it's, you know, that depends on the particular people that you're consulting with? Sorry, I missed. Do they have to use a particular consulted mechanism, or it's just, it's up to the parties to determine? I think it's regarded as a fact situation in a case-by-case basis that if it's a, if it's a taking of land, then it will require deep extensive consultation. If it's a question of some interference in harvesting rights, fishing, hunting, gathering, some slight interference, then it may not be that sort of deep consultation, but more in the nature of giving notice, giving an opportunity to put your side of the question forward. All the land claim agreements now that are being negotiated have detailed descriptions of consultation when it's required and when it's not required. So what, with the consultation, don't just jump in, sorry, with the consultation, does there, does there need to be approval? We hear about consultation all the time, but unless there's actually a level of approval or rejection, the capacity to reject it, what? The trigger for consultation is if, first, that the the native group has a, has rights, or it has asserted a claim. The, if, if government is contemplating a, or has to legally give approval to a project, then consultation is. So can people say no, is the bottom line? The, there is no veto, but if the, if a, if an aboriginal group has a legal right, such as by an established treaty or a previous court case or something of that sort, then there is an effective veto. But Tony, in those cases where the right has clearly established, and there is a, there is going to be some impact on that right. They can say no. In that situation, in that situation, consent would be required. Terry, what can we learn from Alaska? Thank you for the question. First of all, I think rather than taking it to the context of Alaska, let me answer the initial question that you posed about, about ways forward in relation to consultation. I think one of the first issues is recognizing the status of the people's concerned. Meaning that there is clear and explicit recognition of the, the rights and the status of the indigenous peoples that you're going to engage with. Just straight up, clear recognition of the status and rights. And the part of indigenous peoples, their status and rights are inherent in their status as indigenous peoples, as distinct peoples. Earlier today there was a bit of a discussion, especially in relation to the UN Special Rapporteur on minorities, about minorities and political rights. And I think it's essential that we recognize in Australia, in the United States, in Canada, in the Philippines, in the Congo, wherever it happens to be that indigenous peoples and their individual and collective rights are distinct from all others. And by this I specifically mean their political right to self-determination as a collective right. In addition, it's essential to recognize the rights of indigenous peoples to their lands, territories, and resources, which is quite distinct from minorities. The Special Rapporteur made a reference to numerical minorities. And I think that in relation to indigenous peoples these things have to be very clear, very explicit. In addition, as far as the question is concerned, specifically consultation, there should be clear and explicit recognition that the indigenous peoples concerned have the right to participate in decision making. And throughout, for example, the course of negotiating the UN Declaration on the Rights of Indigenous Peoples, we attempted to clarify that even further by inserting terms like meaningfully, effectively, directly. You get the point that the right to participate in decision making is essential. And earlier today, maybe you were present, I don't know, one of the panel speakers, Patrick, in particular, referenced nothing without us. That it's essential to have participation at every juncture, at every step of the way. And I don't think it's necessarily as fine-tuned as determining the legal content, but Ryan has just now made reference to, on a case-by-case basis. And Ken has made reference to overwhelming indigenous peoples in their communities and their representatives with far too much consultation. I think these questions are really within the purview and the authority of the peoples concerned to determine whether they are being overwhelmed with consultation. When it comes to the issue of the right to free prior and informed consent, I think it is much better for us to think of this in terms of a discussion, a dialogue, a negotiation, and the ability and the capacity of the indigenous peoples concerned to either give their consent or withhold their consent. I don't think that it's really necessarily accurate to utilize the term veto, but maybe Ryan can also tell us a little bit more about the Chilcotin case in relation to the rights of indigenous peoples to their lands, territories, and resources, and how free prior and informed consent is triggered and has been elucidated by the court to apply to a wide range of things. But I just want to caution about the use of the term veto, because that's not referenced, for example, in the UN Declaration of the Rights of Indigenous Peoples, and I think it was the indigenous peoples concerned in that particular case who had to point that out. Sorry to be long-winded about it, but I think these are essential elements in terms of moving forward as far as a dialogue and negotiation and discussion with indigenous peoples here or elsewhere. Thank you all for sharing those opening statements and being with us today. I mean obviously the task of this committee of the parliament of both houses or parties is an incredibly complex one, incredibly complex, and we will make recommendations and then it will be a debate within the parliament as to where things go. What I would like to ask you is something fairly specific. If we're talking about responding to the Uluru statement, which essentially call for the only thing it called for in terms of constitutional reform was within the Australian constitution a voice to the parliament of First Peoples would be established. Constitutions in this country are notoriously difficult to get up, so my question is what would you respond to with saying well we'll go to have a referendum, it could be lost or it could be successful versus the idea, but you can't get rid of the voice versus the idea of a legislated body. So either constitutional reform which might or might not be successful or a legislated body within the parliament which can be done away with with a change of government or minister. And we've had that experience. First I'm mostly here to hear from my experience within law and this is more of a strategic question for Australia I think, but if I should still make an attempt coming here and being informed on this whole event and then I don't mean this committee meeting but the conference and that the strong focus on constitutional change I was thinking in the same lines that taking the Nordic countries as an example I think suddenly it would have been we have constitutional recognition in Sweden or in Finland of this army in various ways in Sweden as a people in Finland as an indigenous people and in Norway more in a more cloudy language. But in Sweden and Finland explicit recognition of this army as a people within the constitution in the constitution and I would strongly recommend that because I think that has or I don't think I know that that has legal implications under law as with the status of people come the right to self-termination to be implemented through certain forms of autonomy which would by definition have a direct relationship with the Australian main government and and parliament. But I think it would be a bit difficult because as I would say that would I would recommend and I think but the people of Australia are entitled to under law politically in in the Nordic countries also perhaps would be difficult to move directly from the relatively low point to constitutional recognition and probably there were legislation and so on to similar effects before that these legislation was never repealed they are still there then it was just confirmed strongly by in by a constitutional change to have this kind of recognition or rather the basis of why we have Sami parliaments that have autonomy power that have a direct through law established link how they deal with the government and parliament of Sweden, Norway, Finland and so on that is out in a law and that happened before and then came the constitutional recognition of the Sami as a people as an indigenous people because that is really what these laws and the Sami parliaments the establishment of the Sami parliaments as organs through which the Sami people exercise autonomy within the constitutional systems of Sweden, Finland and Norway and so on but with a formalized relationship with the government, the Swedish government, the Swedish parliament and so on and I think this might be some kind of system that you want to look at because as I said there are clear similarities between the situation of the Sami and the situation of the Aboriginal peoples in Australia but the law with the parliaments and the how this work in practical way come first then came the constitutional recognition to say this is really what this is established on the recognition of the Sami as an indigenous people very helpful thank you thank you I'll try to be really quick first off remember in Canada we have a whole suite of Supreme Court decisions referred to them already that have had a huge impact on changing the conversation in in our country and they continue add to them so First Nations people keep winning most of the court cases having the constitutional protection has been of huge importance in Canada because it signifies their real participation in the country in a sort of a guaranteed way their modern treaties and things like that are constitutionally protected it gives real substance and for indigenous folks I'm not indigenous myself for indigenous folks they put an awful lot of emphasis on the fact that they have those kinds of guarantees in the reality world of sort of if you couldn't have a constitutional amendment would you go for the legislative step I would go for the legislative step but I would not just create a sort of a administration of poverty model or you create some sort of a bureaucracy that just manages indigenous affairs if you can create a legislative step that actually has real authority and real engagement in that co-production of policy model I think it's really important so I sort of a balance of those kinds of things if you it'd be terrible not to get the constitutional change but it would be even worse to lose it I just wanted to make the the quick comment that with regard to a reference in the constitution as one of the I mean the central pivotal instrument would allow for the opportunity as it has in Canada and the United States despite the the wording and the reference within the US constitution to Indian nations as it's fairly limited it would at least afford the wording in the constitution to transcend all areas executive legislative and judicial and I think this is something that would be very important for all day-to-day matters concerning indigenous peoples here in Australia and the other thing I think is important to say is that this committee and your your mandate that the opportunity to be as comprehensive as possible and through for example this conference cataloging the various different approaches and being coherent in that regard is an important exercise and to and to think beyond the constitution or legislative body I I fully appreciate what individuals have said with regard to the difficulties and the history here but societies can change and so the opportunity to be comprehensive now may in fact trigger change that is vital and progressive and positive in the future the the government of Canada attempted in the 1980s to have another amendment to the constitution to guarantee the aboriginal right to self-government that went to a referendum and for various political reasons it was defeated at that point the politicians laid down their tools and said not not in this generation but what they did do is the the government adopted a policy called the self-government policy which said that the government was prepared to negotiate self-government arrangements and there was a whole suite of of of alternatives that were set out in that in that document and listing some powers that could not be transferred to a indigenous government and some powers that could be discussed and others that certainly must be transferred so there was a an approach there a menu of options and that policy has resulted in a large number of self-government agreements and those agreements have ranged from what might be called a local municipal model which would add culture and language and indigenous values to to what was a local government to a regional government to particular arrangements in in the sectors such as education or health management which would be done on a tribal basis or a regional basis and it has also resulted in mixed models which have an element of public government in so that if the residents of the community have non-aboriginal people those people would have a vote for the local council so there's there's a lot of options out there and that is the so there is no legislation except at the end of the process at the end of the process the self-government agreement can be approved by parliament and given treaty status so at the end of the process it has become recognized constitutionally on an individual case thank you thank you and again thank you for making yourselves available it's really valuable for us to get first-hand information from people like yourselves in the field and working across this field we've got a couple of questions as people who've come to Australia what do you see has been the impact of the two high court cases of marbeau and wick if you're familiar with them into that that have really challenged our sense of terranullius in this nation state marbeau particularly and wick of course setting up the capacity to have a concurrent right with past release holdings but dealing but what what do you see is if you're familiar with those cases if you're not on move on to something else but what do you see those cases looking at Australia's political fabric any evidence of us responding to that in the way that your nation's states seem to have done in relation to your first nations i'm not sure there's a question from brian or matias or anyone who you see i can be very brief i i'm not familiar very well with the wick case i will not speak to that but somewhat with the marbeau at least and obviously has been spoken to by many before during these two days i've been a very critically important principal case getting rid of this terranullius principle and so on and acknowledging that Australia was indeed inhabited and subject to rights before the English population arrived so very principal principally important case but i further understand in my reading that the problem with this that it's loaded with caveats that makes it not as important from a practical perspective when you have this burden of proof very high burden of proof of establishing customary law existing at the time of colonization and existing still today i mean that's an enormous burden of proof for any community to to do so it's practical relevance i think is limited quite severely with those caveats and i i would remind that under international or customary law does apply in australia basically what is needed is simply traditional use traditional use of the land by the community without having to go through this process of proving this existence of customary law so i i would hope that australian court and so on would go in that direction in in line with the international law so really quickly i've been down in australia a lot and mostly in the northern territory in western australia over the time and absolutely astonished at how little mabo has affected policy and action just in in the comparison to the canyon context which i think senator wish your question and you're thinking that mabo should be one of these things that just change the way people see the world and changes just have ripple effects through the society i'll just do a comparison you mentioned tako taku and and height of the two agreements in 2000 two court decisions 2004 and they changed the way the resource industry in canada operates profoundly and actually most people who act under them have never read them they're okay we have to do we have to do the consult that's part and accommodate which means that even the slightest problem for the communities has to be addressed through financial compensation additional land jobs employment etc etc we now have hundreds and hundreds and hundreds of agreements between aboriginal communities and resource companies as a consequence of those two decisions and when i first heard of i used to know how i knew Henry Reynolds who was involved with the mabo decision very extensively and the hopes and expectations behind mabo were just right through the roof and i've been really surprised that they haven't been internalized the people haven't looked at those and said this really does change the fabric of the country and again the surprise comes mostly from what happened in canada because those decisions have been transformative and we've sort of taken it as a guide so okay that's we took the wrong path let's go down this way i think just quickly the denunciation of of terinoleus as a doctrine that it signaled high hopes for everyone and the other footnote to this is that though it had immediate impact here let's not forget the the borrowing of jurisprudence by countries across the globe and the real danger of that as well as an outside observer the denunciation but also the opportunity to create a wedge as far as native title is concerned from afar i simply saw the legislative diminishment of the case that that you you had you had the decision and then the opportunity for it to just be legislated away and diminished in phenomenally from from my point of view and i and i would agree with what matias erin has said about the high standard set when we're talking about inherent rights and title to land so from afar it was it was actually a bit akin to some of the developments in alaska where in fact it was somewhat a reverse of some of the developments in alaska in relation to the question of indian country that in the ninth the venetide decision the ninth circuit court found in favor of alaska native people and instantly the congress and others were trying to figure out how can we legislate this out of existence and which then suggests a really politically volatile arena maybe this other questions probably a bit more mundane in the sense that this challenge of recognition the daily you touched on it earlier but it was also touched on now i guess from new zealand earlier out of the experience of the parliament and Maori representation in the parliament how do you deal with the question of why should first nations peoples have a independent position to the parliament of a sovereign nation we're often confronted in this committee by people who say well why should first nations have an independent position we've heard from professor charlesworth earlier about the nature of some comments made in her speech but we're probably still a first base in some of this as to why should first nations people even have a voice to the public alone and trenching it in the constitution why should they have a voice to the parliament and if so should that voice be deliberative that is have impact or should it just be advisory why i think first and then both special interpreters i think spoke to this this morning also that the law international law has changed that effect we used to have an international law provided for political institutional rights only to bodies coming out of the state and that meaning that the institutions of peoples understood as the aggregate populations of states that has changed and in particular so with regard to indigenous peoples that now we have an understanding of people in international where peoples need not only be understood in the terms of aggregate population states but also of populations that constitute sub-segmental states and that is definitely established with regard to indigenous peoples for instance by the declaration of rights of indigenous peoples meaning that the aboriginal peoples of australia have this right they have a right to exercise their wishes and so on for the future not only as citizens of australia and through the the political institutions available to all australians but through bodies particular to them through which they exercise their right to sub-termination in an autonomous way and as i said before that would necessarily have to include a direct relationship with with the political institutions of australia such international law is not so clear as to exactly how this relationship should be exactly what should be the mandate of this autonomous body of the first nations but that there is a right to such a body or bodies that is clear and i think that from that follows an obligation of australia to start to examine what this relationship should be what is this body that the first nations have or bodies and what should be the relationship with the state bodies that is an obligation that australia have and i think the the call coming from the aboriginal people show that there's a clear desire such an institutional change and that the fact that it's not yet established is causing grievances and when the right is there i think there is also the obligation follows for australia to start examine and go down this path sooner rather than later and then as to exactly what would be the structure the mandate and so on i cannot speak to and i think there is limited guidance to get from international law but that the body that the aboriginal people are entitled to this body and that it should be there in some kind i think it's clear and i i think it would be advisable to to start this process i would add as well that to to not address the political right to self-determination of indigenous peoples here or anywhere else means that we'll continue to live with the distortion of history and by that i mean as i was saying earlier in relation to the right to participate just on the basis of the distinct legal status of indigenous peoples as peoples with the political right to self-determination as understood in international law and its equal application vicki talli corpus and her panel presentation spoke about some of the background and history in order to achieve article three of the un declaration the rights of indigenous peoples and so it's the accuracy of history number one but number two through the through the articulation of the right to self-determination and it's clear and explicit application to indigenous peoples as peoples really became a matter of racial discrimination and member states that wanted to diminish or qualify it in that context were practicing racial discrimination indigenous peoples won the day on that issue the un declaration and article three is the same language found in article one of the international covenants it is the same reference as the principle iterated in the united nations charter and the 1970 declaration concerning friendly relations between states which then also invokes criteria by which governments states and we didn't have a hand in creating this 1970 declaration we weren't there right we weren't present when the un charter was being drafted we had no hand in the 1970 declaration governments set for themselves as well as the international covenants we didn't have a hand in the writing of that government set for themselves especially in the 1970 declaration concerning friendly relations criteria by which they can exercise the right to self-determination including the recognition of the right to peoples within their territory and this is what the big debate of article 46 of the un declaration became about but as indigenous peoples we ensured that elsewhere in the un declaration there were provisions that balanced the language we in fact were the only intellectually honest representatives at the table when it came down to this debate and so uh i'm probably giving too much voice to your your mundane question but but the the recognition of the right to self-determination and its attachment to indigenous peoples in australia elsewhere is a matter of equality it is a quest for equality and the opportunity to have independent bodies and political institutions that are responsive to the desires and aspirations and the rights of aboriginal and torii straight islanders would begin to correct and remove this distortion of history that we've all experienced okay yeah just really quickly the um first nations in and matia and india people in canada have very different opinions this isn't a matter of huge conversation in canada but basically it comes down to this there are some folks who favor what they call the they used to call the 11th province that indigenous people should be brought together into some sort of a provincial like status to cover the whole country and draw them together in one in one cent there's another group of indigenous folks who think that active engagement in partisan politics is the right way to go um there are probably between 12 and 15 writings in the country that could be swayed by by by active indigenous engagement in the national political process um which um 10 years ago they didn't vote very much they were said the whole political process is so far removed from their life they didn't think it was very valuable now they're getting more heavily involved and so some people say let's do this and if you have a chance to meet julie wilson rebo who's the minister of justice from canada she's aboriginal from british columbia powerful powerful person and she makes a strong case let's get inside the system and change it sort of from the inside um the third thing i would say though is that the modern treaties in canada have have really changed the conversation about what's possible and how you can proceed so for example all the modern treaties guarantee aboriginal representation a fixed percentage on almost all the major decision-making bodies particularly in the uconn northwest territories none of it's separate because it's a in in in what controlled jurisdiction and so you have sort of a minimum of 40 40 percent brand right is it representation on things like the water development boards and the economic planning boards and things of that sort usually you have 50 50 percent so you you have guaranteed representation on the committees and the processes that lead up to formal decision-making and so in one sense in these environments you have such heavy engagement of indigenous people in local governments and regional authorities that the separate status seems kind of unnecessary and the transformation of the last 40 years in these northern environments has been unbelievable with indigenous people brought right into the formal decision-making process in a way that you're not seeing it happen in the south yet although as you say more treaties in the south it'll probably change there as well pleasure to have brian i have quite a basic question and it probably in some ways comes from my lack of knowledge in relation to your where you can't where you're from and your experiences but our task for this committee one of our many tasks is to come up with something that is achievable in terms of a referendum Australians are very pragmatic people and broader Australia I think I'm sure want to see high levels of disadvantage in Aboriginal and Torres Strait Islander communities improved we we have targets in closing the gap on education health and employment with your experience in relation to constitutional recognition and legal precedent in your geographical areas have you is it the case that you've had disadvantage like we have here and has it improved and can you speak to me about that and give me examples of the improvement I could I could attempt a bit of an answer on this in in this way that if the if the change is measured in terms of a generation there there is indication of improvements the the problem is is one partly of resources and of training we have the in the in the we have a whole territory none of it which is inuit dominated in terms of population and so but is there is still a great deal of poverty there's a dislocation of communities and there is it's a long long process one of the commitments that was made in the land claim agreement for Nunavut was that the public service would have a target of I figured what it was 45 percent something like that of inuit in the public service and that was not achieved and they they had more white faces around the the bureaucracy in the bureaucracy and they weren't they weren't able to get the people and that is a that is an issue a function of resources but it's also an intergenerational thing and there's there are communities that are weakened so whatever scale you use it's going to be a long long program but they are making the decisions themselves so the the inuit government is making the decisions and is running the territory and there's no reason why that model can't be used anywhere thank you two examples come to mind in relation to the indian child welfare act and retaining children indigenous children alaska native children within our communities we have a we have a really complicated history just by virtue of the alaska native claims settlement act yet our traditional councils and our tribal governments persist and and continue in part by virtue of an amendment to the 1934 indian reorganization act in 1936 made applicable to alaska native tribes and traditional councils and just in relation to retaining children within the community which i understand to be a serious issue here as well as across indigenous homelands we've seen market improvement as well as surprisingly acceptance by the state of alaska as a political subdivision of the united states government recognizing the role and the place of the tribal courts the indigenous courts and some of these tribal courts operate and function on the basis of their traditional laws and protocol and the the one and best example that i have is in the community of bethel in southwest alaska which is actually a huge village in contrast to other areas they they rewrote their tribal code on the basis of upec law and tradition and protocol they then sought the best provisions in the federal law of the indian child welfare act they then borrowed also from the convention on the rights of the child and updated their code on the basis of all available information out there related to child custody and retention of children but their most important and and pivotal piece of material for this code was their own law and and protocol that's embedded in their own upec language and that has been that's just one community and there are other other communities where civil jurisdiction has meant a great deal and and caused i think dramatic change of course problems persist and and it needs tinkering and adjustment but that in and of itself is quite significant and an express an important expression of internal self-government internal autonomy internal self-determination the the second area that i'll cite which i actually am quite critical of because it led to the morphing of of a of what was formally non-profit health corporations into so-called tribal entities by by the federal government nevertheless to this day and since this morphing of of these entities into tribal entities which i object to i think it's this it's it's it's kind of oversight and prescription that government shouldn't be involved in because of the right of self-determination nevertheless they now this this linkage of these tribal entities provides the health care services and state-of-the-art health care services for all of the alaska native population across our entire state and runs a budget now certainly in excess of a hundred million dollars a year to provide essential health care services this also means though that we still have problems in our rural areas where there are no health care centers but through telemedicine and other other avenues hopefully this dynamic will change as well but i point to those two things as as examples where recognition of the right of self-determination and recognition that indigenous peoples have the capacity and don't need the capacity training that we often find foundations willing to support and everything have been a success and have been a market success okay yes really um my first observation would be that a lot of the changes that i've talked about actually come as a result of that constitutional section 35 the inclusion of indigenous rights without that a lot of these things wouldn't happen um but first thing come visit i will show you and you'll see that the communities are divided some of them are doing very well and some of them doing very poorly we have some very severe social economic crises we have a problem of endemic suicide epidemic suicide where suicide rates eight to ten times the national national average in indigenous communities and it is a huge crisis so second thing without any change the gap will get worse if you don't fix this now move toward our positive constructive the only thing i can guarantee you is it'll get worse there's no no evidence in canada that our former policies were leading to sort of major improvements there's lots of evidence that indigenous empowerment leads to significant improvements one example in the early 1970s there were less than a thousand Aboriginal people at all Canadian colleges and universities there's now 30,000 and a lot of that is driven by communities that are investing their own money oftentimes millions of dollars a year to get the young people into post-secondary education that's the sort of thing don't expect to panacea you don't pass the constitutional change and see everything get better the next day ryan mentioned this it's a multi-generational it took hundreds of years to cause the problem it's going to take generations to sort of get out of it a couple of things though more focused indigenous business development is going through the roof it's one of the fastest growing parts of the Canadian economy a lot of it directing right back to section 35 of the constitution and the kind of process we've talked about right now job creation particularly in the resource sector is quite dramatic and the resource sector kind of ironically is the front lines of reconciliation it isn't happening in urban coffee shops it's actually happening in mines where the indigenous people are getting nothing wrong with urban coffee shops my wife spends most of her life there but you know the job that's represent places so the job creation side is really important that's actually starting to change the internal dynamics of communities in a whole bunch of ways consultation as came out of these arrangements did not stop economic activity there is this great fear that boys you empower aboriginal folks no roads will get built no pipelines will get built all these kinds of things and it's it hasn't happened there's been aboriginal people have difference of opinions on these projects as everybody else does but it hasn't ground everything to a halt which is very important we now have a situation where indigenous communities have billions of dollars of investable assets that did not exist in the mid-1980s as a result of a whole series of processes sparked by section 35 including resource revenue sharing they have billions of dollars of investable assets and one of the great things watching they're buying back their land piece by piece by piece in taking economic control which is a phenomenal transformation that has long-term long-term significance yeah very briefly asked specifically to to the question thank you in in the Nordic countries in some the summer situation is not that the summer population is socially or economically disadvantaged it's not so the the constitution provisions that exist there are not geared toward that it's geared toward the other kind of discrimination that you want to be different to to ensure that the summer can pursue their way of life speak the kind of language and and so on so that is not the the constitution it's towards the other side of the discrimination and I would say if a if a group seems to be the case have for a long time been seriously socially economically disadvantaged and there are no improvements I would agree that I don't think a constitution will fix that it's not a constitutional problem it would seem to me it's probably a worse kind of problem that it's not a constitutional change that is needed it's a mind change when it comes to address and when a country allows a certain part of the population to be disadvantaged in that kind for such a long problem a period of time there are different kind of change I would think I had the final question from senator seaweed thank you can you touched on truth telling and that was one of the components or is one of the components of the statement and I'm pretty certain Canada's had a process of truth telling truth and justice commission can I ask how effective you've was that a useful exercise and how important was it in part of the journey so Canada had a process called truth and reconciliation it focused on residential schools we have a second one underway right now on missing and murdered indigenous women the first one exceeded everybody's expectations the second one sadly has been engulfed in a whole bunch of controversy although it's still proceeding the truth and reconciliation commission met with people all across the country but we'll talk about their experience in residential schools they were big public fora where there often be hundreds and hundreds of non-indigenous people coming and sitting and listening to indigenous folks talk about their experience in residential schools there's a formal apology that was also I think it's two and a half billion dollars that's not about right in terms of total compensation for people who are victimized in the residential schools it's interesting it came out with 92 recommendations and the one thing I would say to anybody on any committee is don't have 92 recommendations maybe two maybe three but you get to 92 nobody pays us paying attention but the federal government has then announced when it was elected so we're going to implement all 92 and a bunch of us said oh please don't say that because you can't afford to do it and you won't do it and so now they're admitting that they can't afford to do it and they won't do it and and so it's one of those interesting things where one of the biggest problems we have with governments that turn too fast the other direction is they raise the expectations very high however reconciliation has become part of the national dialogue people talk about it all the time in schools in hospitals they talk about in the police force they have they talk about in universities everybody is talking about what role people can play in reconciliation goes back to matias's point here about changing the conversation and making the non-averaginal people responsible quite frankly it could be truth telling about the racism that is an inherent part of creating society and by getting the reconciliation conversation out there i think it's had a fairly positive effect in actually changing the way people talk about indigenous issues just to on the truth and reconciliation commission two points one is i think it was the last recommendation was directed at business and that there should be a an actual attempt with business to deal with social aspects of the employment and so forth and that is was taken up by the mining council or the canadian mining association in canada and accepted as a as a platform for action so even though it was one out of 94 they were prepared to do do something with that the second observation is that the the present investigation into the murder murder and missing aboriginal women which is the the one that was being talked about is is torn by a lot of difficulties some of these are because of the personalities involved but the it also has experienced the pressure from family communities from family members from family groups that they need to tell their story and this has created a lot of pressure to get it done done in a reasonable time frame and there's been resignations from it there's all sorts of political pressure but the government has agreed in the most recent reaction to their demand for another two years the government has agreed to give them another six months and that i've merely mentioned this as an illustration there is enormous desire on the part of many families to have to tell their stories and it it's it's a political reality and in a way you're turning the top the tap on it's it's sort of uncontrolled but at the same time the public itself is getting to realize that the missing the missing women are people are and need to be taken into into account they need to be on our radar why why were there so many unsolved cases in the police system you know just remarks to the very yeah yeah i just wanted to say that um as a as an i was called as an expert witness to the missing and murder and indigenous women and girls inquiry a national inquiry and uh there were in as brian has said there are in excess of 500 individuals and families that still hadn't had the opportunity to testify nevertheless i think that it and the establishment of the inquiry and setting aside the the lack of a of a substantive extension of their mandate has drawn a spotlight that is sorely needed and these numbers these numbers are not confined to the national inquiry in canada they are across the arctic i know that for certain and my my guess is that they exist elsewhere for indigenous women and girls can i thank you all for your attendance today i think what has been particularly interesting is that first nations people face similar histories in dealing with european peoples that the challenges that they face are similar that there are different approaches there is as ken says no panacea but materialist point about the importance of changing minds i think is at the heart of what we're trying to do so thank you all for your attendance here and i declare this public hearing closed thank you