THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, November 2, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:49 a.m. [ET] to study Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts.
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Good morning, honourable senators, and welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
[English]
My name is Brent Cotter, a senator from Saskatchewan and chair of the committee. I’d like to invite my colleagues to introduce themselves.
Senator Batters: Senator Denise Batters from the great province of Saskatchewan.
[Translation]
Senator Boisvenu: Senator Pierre-Hugues Boisvenu, from the senatorial division of de La Salle, Quebec.
[English]
Senator D. Patterson: Dennis Patterson, Inuit Nunangat, senator for Nunavut.
Senator Prosper: Paul Prosper, senator for Nova Scotia, traditional territory of the Mi’kmaq.
[Translation]
Senator Dupuis: Renée Dupuis, senatorial division of The Laurentides, Quebec.
[English]
Senator LaBoucane-Benson: Senator LaBoucane-Benson, Treaty 6 Territory, Alberta.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
Senator Pate: Kim Pate. I live here on the unceded, unsurrendered territory of the Algonquin Anishinaabe.
Senator Clement: Senator Bernadette Clement, Ontario.
Senator Jaffer: Mobina Jaffer from British Columbia. Welcome.
The Chair: Thank you, honourable senators.
We’re meeting again today to continue our study of Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts.
For our first panel today, we’re pleased to welcome the Métis National Council, in person, Cassidy Caron, President. Welcome, Ms. Caron. And Ryan Chawner, Acting Director, Justice and Legislative Affairs. Welcome and thanks for joining us.
We’ll begin with opening remarks, President Caron, of five minutes or so. If it gets too long, I’ll give you a signal. Following that, we will have questions and dialogue with senators. The floor is yours.
Cassidy Caron, President, Métis National Council: Thank you so much. Tansi. Good morning, everybody. Thank you for having me here today. I also want to recognize that I’m grateful to be here as a visitor on Anishinaabe Algonquin territory.
The Métis National Council is the recognized national and international representative of the Métis Nation in Canada, since 1983. The Métis National Council, or MNC, is comprised of and receives its mandate from democratically elected leadership within the provincial Métis governments currently within the provinces of Ontario, Saskatchewan, Alberta and British Columbia.
Our Métis governments, through their registries and democratically elected governance structures at the local, regional and provincial levels, are mandated and authorized to represent Métis citizens within their respective jurisdictions, including dealing with collectively held Métis rights, interests and outstanding claims against the Crown.
Since 1983, the Métis National Council’s priority has always been and will remain Métis citizens, and we will continue advancing issues of collective importance and serving the Métis Nation as our original founders intended.
Thank you so much for having us here today to speak to Bill S-13. I want to start by saying that the Métis National Council supports Bill S-13 in its current form, which amends the Interpretation Act and other legislation, to ensure that Canada’s laws are construed as upholding the Aboriginal and treaty rights of Indigenous peoples, recognized and affirmed by section 35 of the Constitution Act, 1982 and not as abrogating or derogating from them.
The recognition of the rights of Métis peoples affirmed in Canada’s Constitution is a fundamental element of Crown-Indigenous relationships. The Métis National Council agrees that Bill S-13 is part of Canada’s commitment to building renewed nation-to-nation and government-to-government relationships with the Métis Nation based on an affirmation of rights.
The Métis National Council and its governing members have long advocated for these amendments so that Canada’s laws are interpreted as upholding, not diminishing, Métis rights protected under section 35 of the Constitution.
That said, the Métis National Council does have concerns with Canada’s introduction of this bill. Métis governments wanted efficiency from Canada on legislating a non-derogation clause, but such efficiency cannot come at the cost of Canada’s statutory obligations. Participation in traditional stakeholder processes like this committee hearing does not constitute consultation and cooperation sufficient to discharge Canada’s statutory obligations under the United Nations Declaration on the Rights of Indigenous Peoples Act, also known as UNDRIP.
Despite these concerns, this amendment is uncontroversial and long overdue. Métis governments are familiar with the language, they support it and have already adopted it in their Métis government recognition and self-government agreements.
Again, thank you for having me here today, and I look forward to your questions.
The Chair: Thank you, Ms. Caron. We’ll begin questions with the sponsor of the bill, Senator LaBoucane-Benson.
Senator LaBoucane-Benson: Thank you so much, president, for being here. It’s always nice to see you. I really value your remarks.
Am I correct to say that you wish you would have been consulted in a different way? If I’m correct, can you describe what that would have looked like?
Ms. Caron: Sure. Of course, under section 5 of the United Nations Declaration on the Rights of Indigenous Peoples Act, it obligates Canada to take all measures necessary in consultation and cooperation with Indigenous peoples to ensure that the laws of Canada are consistent with the UN declaration and to engage with the Métis Nation on this.
We didn’t have any significant conversation with the minister, the department or anybody involved in the development of this bill. The emails that were sent out to say, “you can submit your thoughts on this bill” do not satisfy consultation or cooperation. Based on the nation-to-nation, government-to-government relationship that we have with the Government of Canada, we would have preferred to have actual conversations and delve into the issues that pertain to this bill prior to it being introduced.
Senator LaBoucane-Benson: Thank you for that. I really appreciate you drawing back to UNDRIP and the section that talks about consultation as one of the bedrocks of the UN declaration.
I hear what you’re saying, but you’re still supporting this bill because it’s something you’ve been working on for decades. I understand that. If we were to bring an amendment forward to this bill, what consultation would be required within Métis National Council, or MNC, to contemplate it?
Ms. Caron: We would want to see the exact language that would be proposed, and then we have our own internal processes at the Métis National Council where we work with our Métis governments to have conversations about this to garner support or to be able to present even further amendments to the language. We would use our internal processes to do just that and then be able to come back to you with our support or further amendments.
Senator LaBoucane-Benson: Okay. I think what I’m hearing you say, and correct me if I’m wrong, is that you value expediency. Do you want this bill to go through as is, or do you want it to be amended in a way that your people would be satisfied with?
Ms. Caron: As it is right now, we are supportive of the language. We have the support of all of our governing members, our Métis governments, on the language as it currently exists and are prepared to say that we support it as it stands.
Senator LaBoucane-Benson: Thank you.
[Translation]
Senator Boisvenu: Alright. Good morning and thank you very much for being here today. I want to come back to the questions we’ve been asking for the past few days about the United Nations Declaration on the Rights of Indigenous Peoples. The intention around the table seems to move towards enshrining the declaration in law. Do you support this position?
[English]
Ms. Caron: Ultimately, again, we support the idea behind it. We support the United Nations Declaration on the Rights of Indigenous Peoples. We support the act. We were supportive of the action plan because we were part of the development of that. Any amendments to the language of Bill S-13, though, would still need to come back to our Métis governments so that we could consult with them to ensure that they are supportive of the language before coming back here to support whether or not we would want that in there.
[Translation]
Senator Boisvenu: I’ll try to word my question carefully. When asking questions of the representatives of Indigenous communities about the rights of Indigenous women relative to the UN declaration, I felt like they were walking on eggshells. I don’t know how to say this without being misinterpreted, but is the fact that the UN declaration would confirm rights especially for women a sensitive issue in your communities?
[English]
Ms. Caron: I’m sorry, I’m not sure I completely understand the question.
Senator Boisvenu: Yesterday, when we discussed that we should introduce in the bill the Declaration on the Rights of Indigenous Peoples, the representatives seemed to, as we say in French, marcher sur des œufs, or walk on eggs. But when we spoke about women’s rights, they seemed very sensible about that. Is it the main objection that we don’t introduce that declaration in that bill?
Ms. Caron: From my perspective, no, that wouldn’t be the reason. The reason, at this point — again, we’re not opposed to adding further language to this — is that we want to make sure that the way it is done upholds Indigenous rights as affirmed by the UNDRIP.
I don’t think there’s anything specific within the United Nations declaration that we’re opposed to, with regard to women.
Senator Simons: I’m going to pick up exactly where Senator Boisvenu left off. We heard initially from Indigenous women’s groups who said that without UNDRIP, the bill is deficient because the non-derogation clause doesn’t do enough to support the rights of women who are more specifically protected in UNDRIP. I found that argument persuasive.
Then we heard from other Indigenous leaders who said that it took years to get the compromise that is this bill and that for you to, at the last minute, add an UNDRIP amendment could upset the apple cart, and then we have no bill. Also, if we put in UNDRIP ad hoc at committee, it undercuts the whole process of consultation that should come before and not after. Was it Harry Truman who wanted a one-handed economist? I find myself listening to persuasive arguments on both sides.
I wonder if you could comment, from your perspective as a female Indigenous leader, on the concern that the non-derogation clause doesn’t do enough to protect women, and also speak to whether or not you think it is our place, as the committee, to proactively add the UNDRIP amendment. Do you think that should wait until Indigenous groups have been fully consulted first?
Ms. Caron: Ultimately, once again, we’re fully supportive of the United Nations Declaration on the Rights of Indigenous Peoples. We are also supportive of the language presented in Bill S-13 as it stands right now because it’s been talked about for the last 15 years, and we don’t want to see any further delay. It would really be a positive step forward to be able to pass Bill S-13.
Specifically, regarding the path forward for ensuring the rights of Indigenous women — and Métis women specifically — we work with Les Femmes Michif Otipemisiwak, which is the voice of the Métis women in Canada. Through the process of the National Inquiry into Missing and Murdered Indigenous Women and Girls report and the development of the action plan, we were part of developing an action plan specific to Métis women. That is what we see as the path forward — to implement those specific Métis actions.
Senator Simons: I think a lot of us around the table, with the best of intentions, want to make sure that UNDRIP is respected. However, if it took this long to get the non-derogation clause in, how long might it take to get UNDRIP in? To be really clear, would you recommend that we vote for this bill unamended, or do you think we should attempt to get the amendment language at least out there for discussion?
Ms. Caron: That’s a tricky question. I’ll defer back to my original response. If we can pass this as is right now so that we don’t delay this any further, that would be the position of the Métis National Council. What we don’t want to see is further processes not satisfying Canada’s statutory obligation to consultation. We don’t know how long that would take.
At this point, the language as it stands right now has been approved by and is supported by our Métis governments. To be able to pass that as it stands right now would be a positive step forward. If we need to come back with further amendments, then we would need to take that back to our Métis governments.
Senator Simons: Thank you very much.
The Chair: Colleagues, we feared our second witness wouldn’t be able to join us today for technical reasons, but those have been resolved. With your indulgence, I might now invite Judy Wilson, Former Kukpi7 Chief, Union of British Columbia Indian Chiefs, to address us. That might expand the questioning. To the extent some of you feel you have lost the opportunity to pose a question to Ms. Wilson, if you would like to, I’ll accommodate that in our dialogue.
Ms. Wilson joins us by teleconference.
Ms. Wilson, welcome and thank you for joining us. I’ll invite you to address the senators on the committee for approximately five minutes, and that will be followed by rounds of questions. The floor is yours, Ms. Wilson.
Judy Wilson, Former Kukpi7 Chief, Union of British Columbia Indian Chiefs, as an individual: [Indigenous language spoken] I’m Judy Wilson. Red Hummingbird Woman is my traditional name. I am from the unceded territory of the [Technical difficulties], which is in British Columbia in the interior region. I’ve been in political office for about 25 years as a former chief of Neskonlith and also as executive in the Union of British Columbia Indian Chiefs and as part of the First Nations Leadership Council. I’ve worked on a lot of the legislative policy and regulation issues not only for our province but across Canada. I’ve also worked on issues with the UN Declaration on the Rights of Indigenous Peoples, both the documents that were initialized from the United Nations but also the federal and provincial legislation that we all know is now the legislation in Canada.
I wanted to say first and foremost — before the UN Declaration on the Rights of Indigenous Peoples — that we have our inherent title, rights, laws, legal orders and jurisdictions of our nations. In the province of British Columbia, most of our nations are outside of the modern treaty process, so the province does not have any deeds to our title. We have not surrendered, relinquished or given up the title to our lands, and the same is true with our language and culture. A lot of our laws are written through our language, and it’s written on the land. So our laws are still quite intact on our territorial lands. The creation of reserves forced us onto small 1% reserves across Canada, and the federal government makes us wards of the government. Also, we do not have full title to our reserve lands either, so we’re still under the Constitution section 35, which I heard Cassidy Caron talking about.
The Interpretation Act is supposed to be the overseeing act that’s supposed to be able to help with that interpretation. However, as was mentioned as well, that hasn’t happened in fisheries. That hasn’t happened in a lot of the key legislation, even though they do have some of the sections. What happens is that Indigenous Services Canada, Crown-Indigenous Relations and Northern Affairs Canada, or CIRNAC, or sometimes the court, interpret what the statements are in there for the non-derogation clauses.
That is very concerning to us, because I understand that the amendment of the Interpretation Act is to provide Parliament and regulations with clarity on upholding the Aboriginal treaty rights of Indigenous peoples — which have been recognized and affirmed by section 35 of the Constitution Act in 1982 — and not as abrogating or derogating from them. My concern is that the free, prior and informed consent of the federal or provincial United Nations Declaration on the Rights of Indigenous Peoples legislation has not been upheld in this process. There hasn’t been enough consultation through this process.
I actually just learned about it last week, and I was asked to join— and I thank the Senate committee for extending that invitation. But as I mentioned, I’m not at the Union of British Columbia Indian Chiefs any longer, but I still work with many of the nations, and I also work with many organizations at this time.
I think it’s really concerning. I think it’s going to impact 26 pieces of federal legislation that already exist for the non‑derogation clauses. Also, I think that three of them were going to be withstanding that they’re not going to change. I think we should have more consultation on the non-derogation clause and a process that aligns to both the federal UN declaration and to our provincial declaration. Because in upholding our rights, I think that is what’s owed to it, and there needs to be that proper process put in place so that we can have that discussion with our rights holders. Because the organizations, they do not represent the rights holders, so that’s why it’s important to get it to the rights holders.
Although I understand that there have been 30 submissions, there are 600 communities across Canada, and if that came from some of the organizations, I don’t think there was time for any of these organizations to fully discuss the non-derogation clauses.
I actually attended three of our provincial organization meetings, and I didn’t see that being discussed at all at any of our meetings that we had in our quarter, and I’m actually at the B.C. Cabinet and First Nations Leaders’ Gathering this week, and I don’t see it in the discussions either.
With fairly important changes that are to happen to our legislation, especially the Interpretation Act, it should really be more consultation, and it needs to be under free, prior and informed consent for that work.
Right now a lot of the interpretation sometimes has to go to court, and I think it’s important that we go through those processes. I know in the mining claims case, the courts were also pointing out that they felt the UN declaration did not have the legal strength to it. There is a lot of implementation of the United Nations Universal Declaration of Human Rights that is still needed, and there is still a lot of work, so we need to get that right.
I just wanted to be able to say that so that you get the context of what we’re looking at, because of our minimum human rights under the UN declaration and also our constitutionally held rights, it is really important to involve the rights holders in this discussion and in this process. I feel the process needs to be more fulsome.
Thank you.
The Chair: Thank you, Ms. Wilson.
Senator Jaffer: Thank you to all the witnesses, and I have a question for you, Ms. Caron, and that is to do, again, with the UNDRIP.
If I am not mistaken — and I have enough colleagues who will correct me — I thought the Native Women’s Association of Canada, or NWAC, said that when the consultations were taking place, UNDRIP was discussed. Was it; do you remember?
Ms. Caron: I can’t answer that, because we weren’t consulted on Bill S-13.
Senator Jaffer: You were not consulted. If people had been consulted, then that would be something that has already happened, and the government decided not to include UNDRIP; would you agree with that? If people had been consulted about UNDRIP in the consultations, then the consultations have taken place; do you agree with that?
Ms. Caron: If we were —
Senator Jaffer: You weren’t; you told me that, but if others were?
Ms. Caron: That doesn’t satisfy the consultation criteria to meet with the Métis Nation, to get the Métis Nation perspective on it.
Senator Jaffer: Thank you. I appreciate that clarification.
I am struggling with the fact that we have to make a decision within one or two weeks about whether we include UNDRIP or not, and so I’m thinking that if we include UNDRIP, how would that process work, then? Of course, you would still go for consultation with the Métis people about UNDRIP being included. How would the process work, is what I am trying to say in a very roundabout way?
Ms. Caron: I suppose if an amendment were made here to Bill S-13, I would expect a phone call from, perhaps, the chair to tell me that that amendment had been made and perhaps to ask if that would garner support from the Métis Nation.
At that time, I would have to convene with the Métis Nation leadership from across the Métis Nation homeland, make sure our technicians are fully briefed on the language and have discussions with them as to whether or not Métis Nation leadership is supportive of the amendment. At that time, I would try to get back to the chair.
It is not an ideal situation. The consultation should have taken place up front before the introduction of this, but I recognize that that is the conversation that we are having today and the conversations that you have been having over the last number of weeks.
Ultimately, the Métis Nation is not opposed to language of the United Nations Declaration on the Rights of Indigenous Peoples. We have done significant work around the implementation and the action plan, and we are hyper-focused on ensuring that the application of UNDRIP’s act is done properly and in a good way.
We cannot be setting the standard for finding loopholes and breaking the rules here and there because we’re under time limits to actually do this in a good way, so we don’t want to be setting that precedent. That’s essentially the process that we would look to do.
Senator Jaffer: I understand what you’re saying, but the dilemma for me and some others on this committee — but I will only speak for myself — is that we have had NWAC come and tell us that UNDRIP must be included, because it has taken 15 years to get this done, so if it is not done now, will it take another 15 years to include UNDRIP?
We are in a dilemma, because — sorry I am saying it this way, and if you do not want to accept that, I understand — but you are a woman heading an organization, and some of us here feel very uncomfortable that when NWAC has come to us and said, “You have to include UNDRIP,” what do we do with that?
Ms. Caron: This is an extremely challenging conversation to have.
Senator Jaffer: And that is what I’m finding, too.
Ms. Caron: Here is what I have to say: When NWAC has come to you to say that they have been consulted on Bill S-13, that does not mean that Indigenous women have been consulted on Bill S-13.
NWAC is an equity seeking organization. They are not a rights-representing organization. NWAC does not have direct linkages or ties or accountability to the democratically elected Métis governments, who have been given the mandate to represent the rights of Métis people.
The Métis National Council does. I received my direct mandate from the presidents, who have received the direct mandate to represent the rights of Métis people, including Métis women.
The Native Women’s Association of Canada does not.
Senator D. Patterson: It is great to see you back here again.
You mentioned UNDRIP and your participation in the action plan. Bill C-15 calls for Canada to work in consultation with Indigenous peoples and other ministers to prepare and implement an action plan to achieve the objectives of the declaration, which is basically to ensure that all laws of Canada are consistent with the declaration.
I’m telling you what you know, but I want to mention that again today, because you have said you are actively involved in the action plan. There is a chapter dedicated to the Métis. There is a bill in the House of Commons that we will look at another time. Your position is to support the amendment as is, and we heard from Mr. Goodon, very eloquently of the Manitoba Métis Federation, with the same message at our last meeting.
Professor Metallic from Dalhousie University, a respected Mi’kmaq professor said that this is a chance to breathe life into UNDRIP that we shouldn’t miss.
Would you say the action plan is the best way forward to put flesh on the UNDRIP declaration in Canadian law rather than agreeing to an ad hoc, kind of last minute, I would say, amendment whose implications are not really clear right now and have not been consulted upon widely?
Ms. Caron: Sorry, are you asking if the action plan is that pathway forward?
Senator D. Patterson: The way forward, yes.
Ms. Caron: Ultimately, yes. We spent a significant amount of time developing the action plan. We have shared priorities with First Nations and Inuit as well, looking at the priorities of how we will ultimately be implementing such an instrumental document that has been worked on for so long.
It is not going to be an easy task. Also, the action plan is a living document that we can adjust as we continue to move forward. But at this time, the implementation of UNDRIP for the Métis Nation, our priorities are set out in that action plan, and that is where we are focusing our efforts at this time.
Senator D. Patterson: You mentioned that you’re working in collaboration with Inuit and First Nations. Now, I represent a largely Inuit region in the Senate, and the Inuit have been clear. Inuit Tapiriit Kanatami, or, ITK, and Nunavut Tunngavik say pass the bill as amended, don’t slow it down. We have been waiting, they say, more than 15 years. Don’t mess this up. Get it done. There are also the 26 modern treaty members of the Land Claims Coalition who have the same message: Get it done.
Do their strong and clear views on this carry weight with you in the position you’re taking?
Ms. Caron: The weight that I bring here today is the strong and clear message that I received from my Métis leadership, who have the exact same message as Inuit leadership. Of course, President Obed of ITK and I have had some conversations about Bill S-13, and we’re on the same page. Certainly, it sounds as though ITK, MNC and all the Inuit leadership you referenced are on the same page.
It is important that we pass this as it is right now with no further delay. If further amendments need to be made, we can do that in the right way.
Senator D. Patterson: Thank you very much.
Senator Pate: Thank you. I’d like to pick up on the discussion but in a slightly different characterization.
In the years before I came to this place and as I have watched us pass legislation, oftentimes the pressure put on groups to accept this or nothing, even when a significant improvement that virtually everyone recognizes and often after the fact may say, “We really wish we had pushed for this at the time,” I am cognizant of that context to this whole discussion.
I’m also cognizant that in reviewing this Justice document last night, in terms of upholding section 35 rights through a non‑derogation clause, what we learned, there is discussion about groups calling for the UN declaration to be part of this. I don’t know if you realize, but you are listed as a group that was consulted in this, even though you indicate that you haven’t been consulted.
I am also cognizant that, as you mentioned, a tremendous amount of work has been done by many Indigenous organizations, groups, leadership and yourself as President of the Métis National Council on the UNDRIP action plan. It strikes me that this is consultation. If I am wrong, I would like to be corrected on that. And the wording being proposed by people like Professor Metallic is actually an affirmation of section 4(a) that was already approved in Bill C-15 and was the subject of consultation from groups.
Why wouldn’t we improve this? This bill is being introduced here. We have an opportunity to improve it. Then it will go to the other place. As far as I know, there has been no objection to supporting Bill C-15, particularly section 4(a), so it seems like there is a real issue of reasonableness and time right now. If this would harm someone — we haven’t heard that. If it doesn’t harm anyone and it will only strengthen rights, why would we agree to a bifurcated process of passing this and then wait for whenever, especially given the political context we are in, wait for hopefully, maybe, sometime in the future, the inclusion of the UN declaration?
If we amended this bill to include a reference to the UN declaration, and I would say in light of the discussions that have already happened with Indigenous leadership through the UNDRIP action plan, that being the starting point for consultation, would that not be an improvement of this bill?
Ms. Caron: There were a lot of aspects to that loaded question. I’m going to start by saying a few things and then pass it over to my Acting Director of Justice, Ryan Chawner.
Just to clarify, when you mentioned the Standing Senate Committee on Legal and Constitutional Affairs report back in 2007 —
Senator Pate: Sorry, no. This is the June 2023 Justice report on the consultations around this piece of legislation.
Ms. Caron: Okay. I’m going to hand it off to Ryan to answer these questions, then.
Ryan Chawner, Acting Director, Justice and Legislative Affairs, Métis National Council: Sure. Thank you for the questions. To speak to the difference between consultation and the UNDA’s language of consultation and cooperation, those are different in law. Consultation and cooperation, we acknowledge, is an, as yet undefined legal standard, but it should be a different legal standard. When Parliament drafts laws, it does so with intention, and the language of “consultation and cooperation” is drawn directly from the UN Declaration on the Rights of Indigenous Peoples. In particular, it comes from Articles 18 and 19, which speak about states working with Indigenous peoples in consultation and cooperation to obtain their free, prior and informed consent. It is about self-determined institutions. It is a nation-to-nation and government-to-government relationship. That is what is implied by “consultation and cooperation” rather than the duty to consult and accommodate.
While Canada did consultations with groups, including the Métis National Council and the Métis governments, they did not do consultation and cooperation. These were unilaterally imposed processes that are akin to the processes that other non-rights-holding, non-nation stakeholders have access to, like commenting on public documents.
Senator Pate: I’m sorry to interrupt, but if this strengthened rights, if there has already been cooperation regarding the type of language that we’re talking about and if there’s already general agreement that we want to see the UN declaration, what harm would there be in including it in this piece of legislation when it is at the Senate and could, therefore, improve the legislation? Professor Metallic, and others who have expertise in the interpretation of section 35 have recommended this as a way to move forward so that you’re not waiting another 5, 15, 20 or however many years to get this kind of legislation.
Mr. Chawner: In response to that, I think looking at the lens of harm is the wrong approach here. It’s about respect for processes and respect for the nation-to-nation relationship. When Canada wants to introduce bills or amend legislation, there are expectations that we have on processes that will be followed and information that will be shared in advance.
We would like to see those processes followed because those are important to the ongoing nation-to-nation, government-to-government relationship.
Senator Pate: That was exactly my question as a follow-up yesterday to Dr. Metallic. Her response was that there have been those consultations around the development of the UN declaration action plan and that groups have been involved. There is no one who has said that they don’t want to see the UN declaration.
How would that not be a respectful place to insert this at this time to improve the legislation?
Ms. Caron: I think ultimately what we want to see is the proposed text. If you can propose that text to us so that we can actually have a look at it and then talk to our leadership to ensure that we have the support of that, that’s the process that we would take at this point. Until we see the proposed text, as you are hoping to amend, then we can’t necessarily speak to that.
Senator Pate: Thank you.
[Translation]
Senator Dupuis: I want to thank all the witnesses for being here today. I feel like you’re going to have to repeat yourselves multiple times, but I want to make sure I understand. The Crown has an obligation to consult before amending federal laws and also an obligation to collaborate with Indigenous peoples to clarify and implement the United Nations Declaration on the Rights of Indigenous Peoples. There’s this double consultation process with a different set of legal criteria, in a manner of speaking, that the Crown must undertake. With that in mind, two things struck me during Chief Wilson and President Caron’s speeches:
Make no mistake: your Standing Senate Committee on Legal and Constitutional Affairs meetings are not part of any consultation process that would replace these two instruments that rest with the Crown.
Is my interpretation correct? I want to ask both Chief Wilson, who spoke of rights holders who were not properly consulted — Ms. Wilson, I think you mentioned that you referred to the 634 First Nations in Canada. Do I understand your position correctly?
[English]
Mr. Chawner: Thank you for the question. If I understood correctly, you were asking if the committee here is a substitute for proper consultation and cooperation. We would say no, it is not.
[Translation]
Senator Dupuis: Thank you. Your position is that the obligation to consult, whether it concerns amending a federal law with the criteria that we know of or implementing the United Nations Declaration on the Rights of Indigenous Peoples, rests with the Crown, or the government, in other words. Do I understand correctly? That obligation rests with the government?
[English]
Ms. Caron: That’s correct, yes.
The Chair: Ms. Wilson may have wanted to make a comment on your question, Senator Dupuis.
Ms. Wilson: These are important questions. Thank you for raising them.
It’s important to know that even with the consultation over the action plan, section 6, the plan process to align federal laws with the UN Declaration on the Rights of Indigenous Peoples objectives, there has to be that process. That’s what we’re talking about, what that process is and has it been met. A lot of this work hasn’t really gone down to the actual rights holders. That’s where our concern was.
My experience in B.C. is we had to put together meetings to try to bring together whom we could. It wasn’t everyone all the time. We did the best we could to get the information out, but it required a better process under free, prior and informed consent.
With the work we’re doing now regarding the Interpretation Act, I’ve been at three main meetings and another large meeting here, and it’s not being discussed. It does need to reach that level where there’s a good, fulsome discussion on how it’s going to impact us moving forward.
I understand there is some draft text. I did read on a website or an email that was sent to me, what the proposed changes are, but what I was putting forward was that it did need more consultation with our community members, the rights holders. I think that’s where part of the assumption is that our organizations are rights holders.
Ms. Caron pointed out very well that the organizations are not the rights holders. We have to go back to the actual members, the actual communities, to get their mandates in what we’re doing. It’s not just the organizations. As I mentioned, in B.C., a great majority of us are outside of the modern treaties, so the modern treaties cannot speak for all of those communities that are outside the process. At one time, the Union of BC Indian Chiefs had over 110 First Nations of the 204 as members that were outside of the process. There are many more that are not in modern claims discussions. Those discussions are important to have with us.
I understand that the Inuit are also saying that Bill S-13 consultation wasn’t consistent with section 6 of the United Nations Declaration on the Rights of Indigenous Peoples Act, or UNDA — Bill C-15. I was part of another Senate a panel where I did raise some of these other questions related to that.
It has far- and wide-reaching effects. That’s what I was mainly raising in my comments. Thank you for shedding more light on these processes. The process should be the free, prior and informed consent standards that are in the original United Nations Declaration on the Rights of Indigenous Peoples.
Senator Clement: Hello to all of you. Thank you for all of your work. It’s remarkable and hard.
There’s been good conversation around consultation. I take your points about rights holders versus equity-seeking groups. Mr. Chawner, you also added that we should not just look at it from a lens of harm but from a lens of the process.
Here’s my perspective as a committee member: My life’s career has been about government. I have worked within, against, government my entire career. I’m a believer in government, but I also know how long it takes and that mistakes can be made. It takes a while to correct mistakes.
In my experience, the people who are told to wait are always the most marginalized, the ones who live with intersectionality. They’re the ones who are always told, “You wait while we get this right.”
I want to hear from you, Ms. Wilson, because I heard you talk about section 35 and how it hasn’t exactly been fully successful around rights and protections. How do you view section 35 versus UNDRIP and the specificity in UNDRIP which speaks specifically to intersectionality?
Ms. Wilson: That’s why I mentioned at the very beginning of what I stated that our inherent title rights are, first and foremost, before the UN Declaration on the Rights of Indigenous Peoples. It’s also the same with constitutionally protected rights under section 35 of our Constitution. Our inherent rights are still intact with our territorial lands, and we haven’t relinquished them or put them under any federal or provincial frameworks. That’s why I always say “inherent rights,” because that means we still hold them, because we haven’t signed any modern treaties. We haven’t signed them away in any way, shape or form. They still exist.
The UN declaration is a minimum human rights framework. They are constitutionally protected rights, but they are not our full rights that we exercise on the ground. We were put on reservations without our consent and put in residential schools without our consent. The children and family welfare acts, federally and provincially, were done without our consent.
You can imagine how all of that comes in. A lot of it is born from the Doctrine of Discovery that says that our people didn’t have any rights or land. Of course, now we’re finding, through the shedding of — the truth coming out, that we do still have our territorial lands and we still do have our laws, legal orders and jurisdictions. That’s why I always speak from the point of view of inherent title and rights.
I know the government has to deal with their framework, but we still have our frameworks intact, and we come from that place. That comes with our rights holders. A lot of these laws that try to overlay our laws, our rights and titles are the underlying laws. They’re the foundation of where we come from. That’s a lot of — with our language, our culture and our ways of knowing. We are caretakers in our territories.
It’s important to understand that those colonial laws were made without us. We didn’t have any say in it, nor did we consent to it. So we still have our laws, the legal pluralism for those, how that’s going to work. In 1910 our ancestral leaders already laid out what that looks like in our area, how we interact with the other laws, because our laws are first and foremost on the land, though, and it was all before colonial laws even existed.
Does that help, or do you want me to elaborate any further on it?
Senator Clement: No. That was beautiful. Thank you, Ms. Wilson.
Senator Batters: Thanks very much. I appreciate all our witnesses for being with us today.
My question is for Ms. Wilson. Thank you so much for joining us today. I’m glad that we were able to get everything connected properly for you so that you could join us today.
The Native Women’s Association of Canada stated in their brief that Bill S-13 fails to represent the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, and I want to quote the following from their report:
In her sponsor’s speech at second reading, the Hon. Patti LaBoucane-Benson —
— who’s here with us today —
— Legislative Deputy to the Government Representative in the Senate, affirmed Bill S-13 responds directly to the UNDRIP and complies.
Then it says:
NWAC is highly critical of this position. In written submissions, in-person and virtual engagements with Canada, NWAC repeated that in order to comply with the UNDRIP Act, any NDC in the Interpretation Act must specifically affirm the rights contained in the UNDRIP.
I’m wondering, Ms. Wilson, if you share that concern of NWAC.
Ms. Wilson: Can you repeat what the gist of the question was? I heard part of it. I think part of it was NWAC saying they were consulted and that they were proceeding forward. I also heard Ms. Caron’s response to that. I just wanted to make sure of the question.
Senator Batters: It’s more about UNDRIP. Senator LaBoucane-Benson, as the sponsor of this bill, had, in her speech — NWAC’s brief stated that in her sponsor’s speech, she stated that Bill S-13 responded directly to UNDRIP and complies, and NWAC was saying that they were highly critical of that position. They basically didn’t agree with that. They repeated that they think in order to comply with UNDRIP, that a non-derogation clause in the Interpretation Act has to specifically affirm the rights contained in UNDRIP.
I was wondering if you share their concerns.
Ms. Wilson: I think I mentioned that too, that it needs to be consistent with UNDA, the process in section 6. I mentioned it two or three times now. That was part of the issue. Does that answer your question?
Senator Batters: Yes. Anything else to add about the UNDRIP element that we’ve heard from other witnesses on but perhaps not as much from you?
Ms. Wilson: With the UNDRIP processes, you mean the free, prior and informed consent?
Senator Batters: Throughout this committee study, we’ve heard from some witnesses saying they believe there needs to be a specific mention of UNDRIP in this bill. I’m not sure that we’ve heard as much from you about that.
Ms. Wilson: The point is that it is a law in Canada. It is federal legislation. I don’t know how you get around that. I guess the interpretation is happening now, the act being amended does not mention that the federal legislation with the United Nations Declaration on the Rights of Indigenous Peoples. You would have to state that it exists. But I’m not sure about the wording, because, as I said, we haven’t had the free, prior and informed consent, the proper processes with the rights holders, to know if that is the correct wording. That’s where I was coming from.
Also, underscoring what the Inuit were also saying. I think, to a degree, I heard what Ms. Caron was saying too, just that section 6 of the plan has a process to align federal laws with the United Nations Declaration on the Rights of Indigenous Peoples and it laid out the process of what needs to be done. It’s important what the Inuit are saying — that Bill S-13 consultation wasn’t consistent with section 6 of the UNDA bill, Bill C-15. That’s what I was clarifying as well.
Senator Pate: It’s less a question than a response, because I appreciated the concern about wording. There’s confusion from some of the groups about whether the UN declaration will be the lens through which all of this legislation will be interpreted or not. The clear direction and advice we got from someone who has expertise in this area was that it be amended to be crystal clear that the type of consultation you are all talking about, happened.
The amendment of Professor Metallic was that Bill S-13 be amended in clause 1, page 1, by adding the following: Every law of Canada is to be construed as being consistent with the declaration.
That’s it.
The Chair: Is there a question?
Senator Pate: Is there any reason that would not be consistent with positions that your organizations have taken in the past? It strikes me that’s precisely the kind of recommendation that came out of the UNDRIP Act Action Plan and all the consultation. That’s why I’m getting a little exercised about the process.
Ms. Caron: It’s funny that we’ve kind of circled around this issue and this topic throughout the entire hour because, essentially, that has already been passed. You’re correct; that’s already been passed in the United Nations Declaration Act. It is section 5.
Senator Pate: But it is not in this.
Ms. Caron: But it’s not in this. Does it need to be in this because it’s already in an act, is the question that we could be asking ourselves here.
I do think, though, that given the non-derogation clause that is currently proposed in Bill S-13, it’s going to require every enactment of Parliament to be construed as upholding the rights of Indigenous peoples, including Métis peoples. Bill S-13 may actually enhance this consultation, cooperation and co-development process that we’re kind of grappling with and have been grappling with over the last hour. I really do think that the non-derogation clause, as it is currently written, actually contributes to the ongoing implementation of the United Nations Declaration on the Rights of Indigenous Peoples because it is doing just that.
I know we’re running out of time, but I want to say one last time that the current language that’s proposed in Bill S-13 is just fine by the Métis Nation’s standards. It’s not going to take away from UNDRIP. It is actually implementing UNDRIP whether or not you have UNDRIP referenced in there or not. That’s the position of the Métis National Council.
The Chair: Thank you, Ms. Caron. I think that concludes our questioning of the witnesses on this panel. Let me take a moment to thank Ms. Caron, Mr. Chawner and Ms. Wilson for joining us. Thank you for being patient, Ms. Wilson, in connecting with us and making sure you were able to communicate your views and answers with us. Once again, thank you all.
For our second panel, we’re joined by and welcome officials from the Department of Justice Canada, who have agreed to come back and field questions from senators. Laurie Sargent, Assistant Deputy Minister, Indigenous Rights and Relations Portfolio. Welcome, Ms. Sargent. And Uzma Ihsanullah, Director General and Senior General Counsel, Aboriginal Law Centre. Welcome, Ms. Ihsanullah.
We have not anticipated you would have prepared statements and that we would just dive right into questions.
Could I just say, senators, that there are a few messages I need to convey to you about this afternoon’s proceedings when we have a chance to visit, presently, with Chief Justice Moreau, soon-to-be Justice Moreau. I will describe to you the plans and protocol for that, if I may. I’d like to suggest we stop at no later than 1:40 in order to do that, and get ourselves together to be able to move into the Senate Chamber.
Senator Batters: On that, just in case some of us need to leave earlier, would it be okay if you could say that part of it now?
The Chair: I could if you’d like, sure.
Senator Boisvenu: I have to leave soon as well.
The Chair: My apologies, this might enable us to go all the way to 1:45 if we have to, Ms. Sargent and Ms. Ihsanullah.
There will be a question-and-answer session with the nominee for the Supreme Court of Canada, Chief Justice Mary Moreau. It will take place from 3:30 to 5:30 p.m. this afternoon in room 035-B of West Block. The good news is if you don’t know the room, it’s not so much of a concern, there will be a bus to take us there. This is an opportunity for this committee to join the Standing Committee on Justice and Human Rights in a question-and-answer session. Members who wish to attend will meet in the south entrance at 3:00 p.m. to take the shuttle to the West Block. So far, according to the record that you have provided to our clerk, all members of the committee intend to attend and pose questions. Let me tell you how that will unfold.
We should be there by 3:15, and the session is scheduled to begin at 3:30. Senators and members of Parliament will sit around a large rectangular table with the nominee and the moderator of the session at the front end. Senators and members of Parliament will have four minutes each for questions. This time slot includes both questions and answers by the nominee. There will be only one round of questions, and the moderator will alternate between senators and members of Parliament, starting with senators.
I have suggested, although it always seems unfair to those at the bottom of the alphabet, that we start with the members of steering in sequence as our turns arrive, followed by senators alphabetically. If we have another opportunity to do this, Senator Simons, we’ll maybe figure out a different plan, shuffle the alphabet or something.
I am told that there is the possibility of votes back in the Senate with bells this afternoon, and it is possible that we will be called back for that purpose. Perhaps every senator has to make his or her decision about the importance of returning, although it is kind of a central part of our jobs.
The people managing the question and answer session are aware of our situation as senators. Is that helpful? Any questions on that?
Senator Clement: Because of these tight timelines and votes, will staff and senators be shuttled over?
The Chair: No, just senators. Staff have to make their own way. You may recall a message that each senator is entitled to bring one staff member, but the staff members have to slog it there on their own. As I understand it, assuming that bells ring and senators intend to return for a vote, a bus will be available to bring us back. Unlucky that it is in the middle of a session of ours and of the House of Commons, but it is the way things are. I am sure that the court is anxious to return to a full complement, so it’s being done in a somewhat expeditious way.
Let’s turn now, if we may, to questions of the officials from the Department of Justice Canada.
Senator LaBoucane-Benson: I want to start today by asking you to describe the consultation process, with as much detail as you can, toward Bill S-13. I’m sure you have heard some of our witnesses say they didn’t feel like they were adequately consulted. I would like to get your feedback or response on that.
Laurie Sargent, Assistant Deputy Minister, Indigenous Rights and Relations Portfolio, Department of Justice Canada: Good afternoon, senators, it is a pleasure to be here joining you on traditional Algonquin Anishinaabe territory.
We have been listening carefully to what witnesses have been saying. We are happy to go through the process again, as described in the, What we learned report. I will, by way of general comment, say that we recognize and are always learning how to do things better, and clearly our processes need improvement, as you’re hearing.
In this case, though, we do feel we were deliberate in not rushing the process, in reaching out in many different ways, through meetings and letters and the publishing of the consultation draft for comment. Still, we clearly did not manage to meet the expectations of Indigenous partners. We can talk a little about that.
One other piece I will add by way of context is to keep in mind that our non-derogation clause work was going in parallel with our action plan development from 2021 to June of 2023. It has been a busy time, and we have been, as officials, meeting with partners, First Nations, Inuit, Métis, women’s organizations and other diversity organizations on a number of different topics and asking a great deal of them in terms of their participation.
My own sense, and we can speak to this a bit, is that we have our own list of meetings that we held. Officials may have changed on our side and on their side, and there were a lot of topics under discussion. There may be a bit of merging of different discussions that we were having — non-derogation clauses, the UN declaration, et cetera.
With that, I am happy to have Uzma Ihsanullah walk through it in a more detailed process if you have the time and you want to hear.
Uzma Ihsanullah, Director General and Senior General Counsel, Aboriginal Law Centre, Department of Justice Canada: Thank you for the question, Senator LaBoucane-Benson. The process initially started in December 2020 when we reached out specifically to particular partners who had participated in these processes related to the 2007 Senate report. What we wanted to do with that initial reaching out, was to check in and say: Is this still a priority, is this still your view and should we be going deeper into this? And the answer we got at that time was, yes.
Then we started a broader phase of consultation and cooperation based on that input. We sent letters to about 30 different rights holders and representative organizations, inviting them to provide written submissions on the non-derogation clause, or NDC, initiative and offering opportunities for having those conversations about the initiative.
Many of these meetings were held throughout 2021, and we also received submissions throughout that year.
You’ll recall that the United Nations declaration act also came into effect in June 2021. That certainly had an impact on our approach to consultation and cooperation because we understood that we had obligations under section 5 of the act.
We reached out again, sent another letter to Indigenous partners, the same ones that were contacted earlier, invited them to share updates or additional views they might have, and we continued to meet with partners throughout 2022.
I would say, to echo what Ms. Sargent has just mentioned, that during that period in 2022 especially, we were also consulting with Indigenous partners on the action plan itself.
Conversations around the non-derogation clause initiative were often included in the agendas of those meetings, so more than one thing was often being discussed in those meetings.
That’s also where we heard from a few partners that they were interested in having an interpretive clause with respect to the declaration itself.
The result of that, of course, was that there is an action plan measure specifically related to looking deeper into having an interpretation clause relevant to the declaration.
In 2023, the beginning of this year, in March, we were able to publish draft proposal legislation for comment. We reached out again to partners to let them know that was available, and that the specific wording was there for consideration. Also, the public in general would have had access to that, and we could have received comments. We didn’t receive a lot of comments on the draft proposal. It seemed we managed to find the right balance in terms of the different things we were hearing about the language that was used.
Then that draft legislative proposal was taken down from our website, and we proceeded with the introduction of Bill S-13.
The Chair: Thank you.
Senator Simons: I’ve heard some people suggest that putting an UNDRIP amendment into Bill S-13 would be largely symbolic. Other people say it would profoundly change the way the bill is read and the way the laws are interpreted. It can’t be both.
What would be the legal consequence of adding UNDRIP? Never mind the political consequences or the consultative consequences, but functionally, legally, what difference would it make to have that UNDRIP included in this non-derogation act?
Ms. Sargent: I can start that response and turn it to Ms. Ihsanullah. Part of our answer to that would be that we’re not sure. It depends on what the provision says, and it depends on how it interacts with the UN declaration act itself, as was pointed out in some of the previous witnesses’ testimony. There are provisions already. Section 4 of the UN declaration act speaks to the application of the declaration in Canadian law and an interpretive preambular provision.
It’s hard to say in the abstract. There are already measures in place that seem to do something similar. It would all depend on the response, and I do feel like I’m talking like a lawyer, but I believe that’s actually an appropriate answer.
Senator Simons: Ms. Ihsanullah, would you want to add to that? Because I didn’t find that gave me the clarity I was seeking; let’s put it that way.
Ms. Ihsanullah: I think this goes back to what we have suggested before, which is that we would want to do deeper consultation and cooperation with Indigenous partners, so that we could understand better what they were looking for in terms of legal effect of such a provision and how we could be responsive to that.
Senator Simons: Leaving aside the politics of consultation — I’m a non-lawyer — I really want to understand: If you put this clause in, what does that mean for the next piece of legislation that comes along? What are the dominoes — maybe that’s the wrong metaphor. The next piece of legislation that we interpret, how is the interpretation different with the non-derogation clause and how is the interpretation different if there’s an UNDRIP clause?
Ms. Sargent: Maybe I will try taking that in three different ways.
First, I will note that consultation and cooperation are not just a political or policy issue, of course; it’s now a legal obligation under the UN declaration, and that is very much what we are hearing from our partners.
Second, in terms of the effect of the section 35 non-derogation clause — which is what we have already spoken to — really, it creates this default rule that if federal legislation or regulations could be read in two different ways, the way it should be read is the way that upholds section 35 Aboriginal or treaty rights — as those rights are set out in treaties, of course, or as they are developed and interpreted by the courts and through other agreements, legislation, et cetera.
Senator Simons: We have lots of common law on this.
Ms. Sargent: Certainly, we have lots of common law on section 35.
Senator Simons: Lots of precedents.
Ms. Sargent: Not so much on the use of the non-derogation clause itself to interpret legislation. There are some examples, and there are actually increasing numbers — not a lot of cases yet, but there are some. Our minister referred to one of them, which I think Ms. Wilson might have mentioned as well, namely, the recent Ktunaxa Nation v. British Columbia case, where the court looked to the non-derogation clause — in particular, the section 35 part of it — to say that a minister, in exercising his discretion, needs to take into account section 35 rights.
Many would say that that’s already what the law requires. This bill will emphasize that requirement and make it hard to miss, I would say, for courts and officials.
In relation to a UN declaration interpretation clause, say we were to look at the one that Professor Metallic has proposed, which is similar to what B.C. has in its legislation. It would be a similar effect, one would expect, that courts or officials would have to look at any statute they were applying or interpreting and ask whether their interpretation aligns with whatever the relevant right is in the declaration. If it’s in relation to self-government or self-determination, what does the declaration say about this, and how do I try to ensure that I am interpreting in a way that aligns with that?
Again, we’d say that is already what the UN Declaration Act requires and that is how the Court of Appeal of Quebec, for example, used it in its decision in relation to the child and family services legislation that’s currently on appeal to the Supreme Court.
Hopefully, that provides a little more clarity.
Senator Batters: Thank you for being here today. I was just taking a quick look at the Gender-based Analysis Plus that was recently provided to us for Bill S-13 after we asked for a copy of it.
I would have to say that it’s not really a deep analysis; it’s only a page and a half and it doesn’t include a lot about the gender component of it. It mentions the fact that the Native Women’s Association of Canada and the Ontario Native Women’s Association participated in the consultation and cooperation process, but it doesn’t say anything — and I would have expected it to — about this issue that we continue to hear about in each of our meetings on this bill, namely, the fact that the government chose not to include the UNDRIP provision in this bill.
The Native Women’s Association of Canada, of course, has taken a strong stance on that and said that they are highly critical of that position. Given their importance and the fact that they are mentioned in the gender-based analysis plus, or GBA Plus, document, I would have expected to see some indication in here about this UNDRIP component, and I don’t see that. Why isn’t that in the GBA Plus document?
Ms. Ihsanullah: Thank you, Senator Batters, for the question.
The GBA Plus document — that particular one that you have seen — was prepared prior to those particular submissions by the Native Women’s Association of Canada, in terms of why the reference is not there.
I can comment on this whole issue a bit more. Bill S-13 is in relation to section 35 rights — which, of course, as we know, is a provision of the Constitution. When we’re reading the Constitution and the implications of constitutional rights, we have to look at the whole of the Constitution, of course.
Section 15 of the Charter, as you know, codifies the concept of equality. The courts have explained to us that that is substantive equality, so what’s happening on the ground.
Section 28 of the Constitution also talks about the fact that rights are guaranteed equally to male and female persons.
Section 35 itself has that provision as well. Section 35(4) talks about equality between male and female persons and that those rights are guaranteed equally.
Section 35 creates that space for Indigenous peoples to govern themselves in a way that’s consistent with their own laws and traditions. Also, the UN declaration helps to inform us with respect to issues around self-determination and self-government.
I would say that it’s not exactly clear whether the declaration would offer anything different with respect to this issue of gender equality in Canadian law because we have all these guarantees already.
Of course, we also know that — on the ground and in terms of how laws are interpreted and how society works — gender discrimination still exists. We need to continue to ensure that we are mindful of that in how we are interpreting laws. For the Department of Justice, of course, we consider the work that we do through a GBA Plus lens.
Senator Batters: Is it the government’s position, then, given what you have said — I’m trying to read between the lines — that UNDRIP itself doesn’t necessarily add more clarity on gender equality rights? I would have to look back to see what the government’s GBA Plus document said about the UNDRIP bill, but perhaps you know that.
Ms. Ihsanullah: I’m afraid that, off the top of my head, I can’t speak to what the GBA Plus analysis said.
Senator Batters: Could you let us know?
Ms. Ihsanullah: We could certainly come back to you on that, yes.
Senator Batters: Are you saying that it’s the Government of Canada’s position that UNDRIP doesn’t necessarily provide greater clarity on gender equality or have any gender-based components that would have properly been part of this assessment?
Ms. Sargent: I’ll address that particular question.
We’re here to provide you with information, and I can point you to relevant provisions of the declaration; articles 22 and 44 speak specifically to equality rights and also the need for special measures to be taken in relation to vulnerable populations, including women and children.
I fully recognize and acknowledge that the declaration does speak to these issues. We would tend to see that those protections are already mirrored in Canadian law in the Charter, as was just mentioned, and in Canadian human rights legislation, et cetera.
I don’t know that we can say one is better or different than the other, but certainly, Canadian law does contain all the protections that are reflected in the declaration itself.
Senator Batters: But when you’re amending the Interpretation Act, wouldn’t it be the appropriate place to potentially put it in this bill, or at least detail in this gender-based analysis plus document why it is not in there?
Ms. Sargent: I will take a step back and go back to what we heard from witnesses in terms of what we were considering as we moved the initiative forward, which was a proposal that originated from Indigenous peoples themselves, which was a section 35 non-derogation clause. We were working with Indigenous partners to determine what the best wording would be for that provision.
In doing so, we heard some partners raise the possibility of a UN declaration interpretation provision. But the consensus that we heard — and as you’ve heard, it’s not unanimous — but the consensus went more toward a section 35-based and focused interpretive provision.
Then we do our GBA Plus analysis we’re doing on the proposal itself. We’re looking at the gender-based impacts of a section 35 non-derogation clause. We’re not so much looking at what other options might have been considered.
Really, we have guidance that’s available on the web for how we’re to do our GBA Plus analysis to be looking at data with respect to potential uneven impacts on women versus men, or more generally — that’s the plus, of course — on intersectional discrimination. In this case, it’s a pretty challenging exercise to do that in an evidence-based way in relation to a clause that essentially articulates a constitutional protection at a high level that then needs to be implemented through the interpretation of every federal law. It’s a bit challenging to really assess the gender-based impacts of that.
What we go back to is: Have we spoken to Indigenous women as well as, of course, rights holders, First Nations, Inuit Métis on a distinctions basis? Have we considered how their participation might be impacted by gender dynamics? Do we see there are ways in which the law itself, on its face at a minimum, guarantees equal protections to women, men, and more generally those of diverse gender identities? As Ms. Ihsanullah just mentioned, if we read the constitution as a whole, that is the type of protection we do see. It was hard to identify.
The Chair: I will stop you there so there will be opportunities for others to ask questions.
Senator D. Patterson: Thank you, Mr. Chair. Ms. Sargent, good to see you back, and thank you for being here. The only issue with this bill is the addition of a new clause, I believe. There’s strong support for the bill. The minister was clear on the issue of the inclusion of UNDRIP in the Interpretation Act that not enough consultation had happened on that question.
We heard yesterday from folks who said they would not be supportive because there wasn’t enough consultation on the issue, or because they didn’t want to jeopardize swift passage of the bill before us. That was the land claims coalition, 26 modern treaty holders, NTI, the Nisga’a, ITK. Earlier today we heard the Métis National Council clearly urging swift passage of the bill as is.
As someone who works closely with these partners on consultation, co-development and the action plan, do you feel that there would be upset and discord around those tables if we pushed through an amendment regarding UNDRIP as is being suggested?
Ms. Sargent: I will go back to more of the approach that we’ve heard from a number of partners. In other words, there is a new level of obligation on the federal government of Canada to develop legislation, and legislative provisions in consultation and cooperation with Indigenous peoples. Again, as you have heard, we’re still not even quite there in terms of our processes.
We can expect and anticipate that there would be concern if there weren’t appropriate consultation and cooperation done in relation to these proposed amendments.
We, from a federal government’s perspective, understand the parliamentary process can be a venue for these kinds of consultation, cooperation discussions or certainly we wouldn’t want to foreclose that if you were to hear from a broad range of rights holders and other organizations that they support a particular provision. It’s not for us to say we can’t consider that.
There was a question about whether it’s a Crown obligation or a parliamentary venue choice. They both have to work together in that regard and, of course, any proposed amendments have to come back to the government for consideration. At that point, there would be a consideration of the level of support expressed by partners.
But it is, bottom line, clearly a preoccupation that consultation and cooperation need to be adequate.
Senator D. Patterson: Thank you.
Senator Klyne: Thank you, and welcome to our panel here. Considering the Minister of Justice’s press release, he appears to support the adoption of Bill S-13 as it would promote consistent approach by clearly stating that all federal statutes and regulations must be interpreted in a manner that upholds section 35, Aboriginal and treaty rights.
Is the current framework, where specific NDCs are provided for in specific laws, more appropriate in your opinion? Could this measure we’re taking there, Bill S-13, diminish or limit Aboriginal rights, although it’s objective remains to enhance the protection of current rights?
If I am understanding correctly from things I have heard from witnesses before, this is not a meaningful consultation process that we’re holding here whereby we could amend this by including UNDRIP, and it’s up to the rights holders to have received meaningful consultation for that to even be considered and that will not happen in this current form.
Ms. Sargent: I will take your second question first, will this diminish section 35-protected Aboriginal treaty rights? It is very challenging to see how it could, given that its entire intent is to really uphold and promote interpretations of federal laws that uphold those rights. That is the easy one.
In terms of the current framework, I may need you to repeat the first question.
Senator Klyne: I was asking if the current framework, where specific NDCs are provided for in specific laws, more appropriate in your opinion?
Ms. Sargent: I will go back to the purpose of this bill, which is to move us away from that framework to ensure that there is one consistent interpretation approach taken to all federal statutes, which would mean that there’s no longer a need for it to be added on a statute-by-statute basis. From the government’s perspective, this harmonized or more standardized approach is the preferable one. We’ve seen some inconsistencies and incoherence where it’s left to a statute-by-statute basis. It’s also time-consuming. From the government’s perspective, this is a step forward, a positive approach.
On the question of meaningful process, I think that I addressed that in my last response. There are many ways in which consultation and cooperation can be carried out, but there is no question that a time-constrained and limited number of opportunities for nations and rights holders to participate will not look as much like an appropriate consultation and cooperation process as something broader and with a bit more time.
Senator Klyne: Thank you.
The Chair: Colleagues, we have four more questioners. I’m going to suggest, if you’re comfortable, going to 1:50 p.m., but no later than that.
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Senator Dupuis: Thank you to the witnesses for coming back. Can I ask you to send the committee — I don’t necessarily want the answer today — the following: What are the three laws that are not covered by Bill S-13 and that will keep their non-derogation clauses? How many federal laws — what is the list — that do not have non-derogation clauses that will be repealed because they are covered under Bill S-13? I am thinking of the Tlicho Land Claims and Self-Government Act, which is a federal law that doesn’t contain a non-derogation clause. According to your department, how many federal laws will be impacted by Bill S-13? We need to have a clear picture of the bill’s impact.
You mention “partners”, but on the other side, they talk about organizations. We have had witnesses from national and international organizations representing Indigenous peoples that defined themselves using all sorts of terms, but not one of them used “partners”. Some speak of rights holders. When you talk about “partners”, what does that mean legally? Which organizations does that cover? Does it include the 634 First Nations? Is it the Assembly of First Nations? Who are these partners?
From what I understand — I tried to pay attention to what you described since 2021 — there’s a consultation process that appeared to be fairly consistent at different stages of different projects, while the Crown’s obligation to consult has to follow a specific set of criteria established by the courts. However, the process set out in the United Nations Declaration on the Rights of Indigenous Peoples provides that it should be developed collaboratively with First Nations. The government has to consult and to act in partnership. It goes back to those two different realities. What strikes me is that you seem to follow a consistent three-step consultation process, while those two legal obligations have very different criteria.
Ms. Sargent: There are quite a few points in that question. I’ll try to be efficient. The three laws that will keep their non-derogation clauses are indicated in our What We Learned documents.
Senator Dupuis: Okay.
Ms. Sargent: As for the other laws that don’t have these clauses — I think there are about 700 federal laws last I checked. Of those, there are 26 — excluding the three we just mentioned — that currently have non-derogation clauses. That means 600-odd laws that would be impacted by this blanket non‑derogation clause. We could provide a list of these 600 laws, but hopefully that won’t be necessary to give an idea of the number of laws that would be impacted by this amendment.
As far as the term “partners”, I would say that it has no legal meaning. It reflects the notion that we work closely with many different organizations, communities and rights holders. We begin by establishing a partnership and collaboration relationship, then we use this word — maybe not always completely consistently — as we work more and more closely with these partners, these Indigenous groups. Obviously, there is still a lot to do to build these relationships. It would probably be more proper to talk about Indigenous communities and peoples with whom we work within our processes.
Senator Dupuis: If I could interject, you have—
[English]
The Chair: We’re very short on time, Senator Dupuis. I don’t know that you got to answer the third question.
Ms. Sargent: I did not quite. On the kind of process that we followed, you asked if it was a uniform or step-by-step process. From our perspective, it wasn’t. It was a process that grew and was a process in breadth in terms of the number of partners with whom we discussed the proposals and the changes in wording that were being sought by some partners, not others. Also there was this question of whether we should repeal all or only repeal some of the non‑derogation clauses.
There were actually a number of different approaches taken, and this is something we’re going to learn and do better at, as we go forward. What are the impacts specifically on certain groups that had non‑derogation clauses already in legislation, specifically about them? There were more intensive discussions, of course, in that regard. What are the groups that have expressed interest —
The Chair: I’m going to have to stop you there, Ms. Sargent. I think we got the drift of it. Thank you.
We’re down to about 12 minutes. I apologize, colleagues, for being short at the end.
Senator Pate: Thank you to both of you. I’m still trying to sort this out. We heard some people saying today that they wanted more consultation. But overwhelmingly, it seems to be, yes, putting UNDRIP in might be a good idea, but we don’t want it to delay the bill. That’s the essence of what I’ve heard.
There’s been extensive consultation around the action plan. In fact, it is shared priority number 2 from engagements that emerged from the development of the action plan. In the consultation document that the department produced in June of this year, it talks about the fact that the issue of including the UN declaration was raised. In the time between Bill S-13 being talked about and the Senate doing the work in 2007, Bill C-15 passed and now we have the UN declaration.
The question that keeps getting asked of me that I don’t have the answer to, and so I’m going to, in turn, ask you and is also an extension of what Senator Simons asked is: Who made the decision? Why wasn’t UNDRIP included? What do you see as the potential interpretive benefits or harms to it not being included?
Ms. Sargent: In terms of who made the decision, ultimately it’s cabinet who puts forward what we would put forward by way of legislation.
Our minister at the time was listening carefully and trying to gauge the level of consensus around different potential elements of this legislation. At the time, they did not feel, regarding the declaration portion, that there was sufficient support or, frankly, adequate consultation on a specific proposal because we didn’t have one at the time. We did have, of course, language in relation to what you now see in Bill S-13, a section 35 non‑derogation clause.
I’ll also just say that in this case, this specific bill was very much informed by Indigenous leadership who were pursuing this particular amendment as a matter of priority.
Senator Pate: Some of that same leadership, though, has said that they would see it as a benefit but didn’t necessarily want to delay the bill.
I’ll be very blunt, but my worry is that if it’s not there, then a court tries to interpret, and they might say, “Well, they had the opportunity to include the UN declaration and then didn’t, so maybe it doesn’t apply,” even though I would argue, and certainly some of the other Indigenous groups have said, that it’s already law, so it must apply. This is the Interpretation Act; leaving it out sends a message to the courts also.
Ms. Sargent: That’s an interesting way to look at it. We have the UNDRIP Act itself, which we’ll go back to again. It speaks to the interpretive role of the declaration in Canadian law and its application in Canadian law. Parliament has not been silent on that front.
In terms of the Interpretation Act itself, there are many rules of interpretation that aren’t reflected in the Interpretation Act. Parliament sometimes chooses to reinforce some. I would not think that the fact that this is not reflected here would be taken to mean that, somehow, that interpretive presumption didn’t apply. In fact, if we look at the Quebec Court of Appeal’s decision and other ones I was referencing, clearly courts have assumed that the UNDRIP Act means that the declaration should be taken into account in interpreting Charter section 35 and federal laws.
There are a lot of legal arguments, therefore, why I don’t think that the omission would somehow be taken that way.
Ultimately, I’ll bring us back to the fact that our action plan does contemplate ongoing, forward-looking work in relation to this idea of adding a declaration-related interpretive clause. That indicates an ongoing intention to consider.
Senator Pate: Would there be any harm in adding it right now?
Ms. Sargent: I don’t feel well placed to respond to that question.
Senator Clement: I had a similar question.
I made an amendment to Bill C-11 that was accepted by committee with a clear reference to UNDRIP. There’s no argument; it’s there. I didn’t get any pushback from the lawyers around the table or the government around that. I have similar concerns as those expressed by Senator Pate. That’s not really a question.
Thank you.
Senator Jaffer: Ms. Sargent, I come to the Senate from the women’s community. When I hear some of the things you say — I’ve been away from it too long, so maybe my blood doesn’t boil as much as it would have, in my younger days. But I’m really concerned because you say the groups didn’t bring it to us, but women’s groups say that it needs to be in there.
Are we just supposed to ignore it, even though they’ve made the plea? I’m going to put everything to you. When we were asking, some people said to us, “Well, the government didn’t put it to us. That’s why we didn’t discuss it.”
Because of time, I’m agitated to hear you say that it wasn’t brought to us. This is supposed to be a feminist government, and you leave a group out and you leave UNDRIP out — I’m really concerned about that.
Ms. Sargent: I’ll take the opportunity to clarify, because I feel that maybe my response to Senator Batters led to some confusion.
I didn’t ever want to say that it was never brought to us. It was clearly brought to us. Our reports do say that —
Senator Jaffer: I don’t mean you. Some witnesses we heard, said that if it had come they would have done it, but now they haven’t done the consultation.
Ms. Sargent: I’m not sure exactly how to respond to that, except to say that maybe taking a step back, our processes in relation to the development of any legislation that significantly impacts Indigenous peoples needs to ensure that we are consulting and cooperating with all of those peoples: First Nations, Inuit and Métis. We have also made great efforts to ensure we are including women’s organizations and others representing 2SLGBTQQIA+ and gender-diverse individuals.
We have not heard the level of consensus around this proposal that we have in relation to section 35. For now, the government’s position is that it wishes to take more time to continue working collaboratively with all of those rights holders and organizations to determine the way forward. Of course, there’s always the potential for changes, but that’s the current approach.
Senator Jaffer: Chair, I will just say a few words. I know we’re out of time.
Ms. Sargent, when you say that, in my younger days, when witnesses used to say to me that these things take time and it’s in their agenda to do it later — I’m sad that we’re still saying that.
The Chair: Thank you, colleagues. I think this brings to an end the round of questions for our witnesses. I want to extend my thanks to Ms. Sargent and Ms. Ihsanullah.
To bring to your attention our plan, we will move to clause-by-clause consideration of Bill S-13 next Wednesday, November 8. You know the drill: If you have amendments and are open to sharing them with the committee through the clerk in both official languages, you might do that in advance. We’ll begin our deliberations on clause by clause next Wednesday afternoon.
Thanks for joining us and for hanging in, witnesses and senators.
(The committee adjourned.)