THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, November 8, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:34 p.m. [ET] to consider 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.
[English]
The Chair: Colleagues, we are meeting to begin clause-by-clause consideration of Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts.
Today, we are joined by officials from the Department of Justice Canada to answer technical questions. They will not be making presentations. We’re pleased to welcome back Laurie Sargent, Assistant Deputy Minister, Indigenous Rights and Relations Portfolio; Valerie Phillips, Director and General Counsel, Aboriginal Law Centre, Indigenous Rights and Relations Portfolio; and Jaya Bordeleau-Cass, Council, Aboriginal Law Centre, Indigenous Rights and Relations Portfolio.
Thank you for joining us for this purpose.
Colleagues, I wonder if we could begin by going around the table and introducing ourselves to our vast listening audience.
Senator Batters: Denise Batters from Saskatchewan.
[Translation]
Senator Boisvenu: I am Senator Pierre-Hugues Boisvenu, and I represent the senatorial division of La Salle, in Quebec.
[English]
Senator D. Patterson: Dennis Patterson, Inuit Nunangat, Nunavut.
Senator Prosper: Senator Paul Prosper from Nova Scotia, land of the Mi’kmaq.
Senator Klyne: Marty Klyne, senator from Saskatchewan, Treaty 4 territory.
Senator Kutcher: Stan Kutcher, Nova Scotia.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.
Senator Simons: Paula Simons, Alberta, also Treaty 6 territory.
[Translation]
Senator Dupuis: I am Renée Dupuis, and I represent the senatorial division of The Laurentides, in Quebec.
Senator Clement: I am Bernadette Clement from Ontario.
[English]
Senator Jaffer: Welcome. Mobina Jaffer, British Columbia.
The Chair: Just to go over some ground rules for our clause-by-clause consideration, if I may, and a reminder of a few points. If at any point, senators, you’re not clear where we are in the process, please ask for clarification. I want to make sure that at all times we have an understanding of where we are.
In terms of the mechanics of the process, when one or more amendment is proposed to be moved in a clause, amendments should be proposed in the order of the lines of the clause. I think today, colleagues, unless there has been a development of which I’m unaware, there were two amendments contemplated for one of the clauses. One of those from Senator Jaffer has been withdrawn in favour of an amendment from Senator Prosper. So, I don’t think we will have a problem there.
If a senator is opposed to an entire clause, the proper process is not to move a motion to delete the entire clause but to vote against the clause as part of the bill.
Some amendments that are moved may have consequential effects on other parts of the bill. It would therefore be useful to this process if a senator proposing such an amendment were to identify other clauses in the bill where this amendment could have such an effect. Otherwise, it may be difficult for colleagues on the committee to remain consistent in their decision making.
Because no notice is required to move amendments, there can, of course, have been no preliminary analysis of the amendments to establish which ones may be of consequence and which ones could at least be contradictory.
If committee members ever have any questions about the process or the propriety of anything occurring, they can raise a point of order. As chair, I will listen to the arguments, decide when there has been sufficient discussion and make a ruling.
The committee is the ultimate master of its business within the bounds established by the Senate, and any ruling of the chair can be appealed to the full committee by asking whether the ruling shall be sustained.
I wish to remind the honourable senators that if there’s uncertainty as to the results of a voice vote or show of hands, the most effective route is to request a roll call vote, which will obviously provide unambiguous results. The clerk will conduct such a roll call. Finally, senators, you should be aware that any tied vote negates the motion in question. Are there any questions or comments on the above? If not, I think we can proceed.
This is with respect to Bill S-13. I should mention in the discussion and dialogue, Senator LaBoucane-Benson is the sponsor of the bill, and I’m going to try to give her, essentially, the last word in any of our discussions.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Is it agreed, with leave, that the remaining clauses be considered in groups — groups of 10 is my suggestion?
Hon. Senators: Agreed.
The Chair: Shall clauses 1 to 10 carry?
An Hon. Senator: On division.
The Chair: Shall clauses 11 to 20 carry? I think this is where — I’m sorry. I jumped the gun a little bit. If I may, apologies, colleagues. Senator Prosper’s amendment is to clause 1. Is it okay if we unwind our vote on clauses 1 to 10?
Hon. Senators: Agreed.
The Chair: Thank you.
Senator Dalphond: [Technical difficulties]
The Chair: If I may provide a little bit of context, Senator Dalphond. We struggled a little in the sequencing of votes at the Agriculture Committee a few weeks ago and Senator Dalphond, ever wary, was attentive to that.
This now invites Senator Prosper to introduce an amendment. I’ll read the number and then turn it over to you. This, colleagues, for your information, is PJP-S13-1-1-11.
Senator Prosper: I move:
That Bill S-13 be amended in clause 1, on page 1,
(a) by adding the following after line 11:
“(1.1) Every law of Canada is to be construed as being consistent with the Declaration.”;
(b) by adding the following after line 15:
“(3) For the purposes of subsection (1.1), Declaration has the meaning assigned by subsection 2(1) of the United Nations Declaration on the Rights of Indigenous Peoples Act.”.
Colleagues, this amendment is not about creating laws; it’s about interpreting law. It’s about honouring as well existing legal obligations and providing the greatest amount of clarity and guidance to both the judiciary and lawmakers within this country.
We have heard from the testimony that the declaration and section 35 are linked, that one informs the other and that the declaration breeds life into section 35.
We also know that Canada has already international legal obligations to honour the principles of the declaration as a signatory. Canada has also made it a domestic legal obligation to ensure that all laws in Canada are consistent with the declaration per the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, Act, for example, section 5 states:
The Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.
Furthermore, the UNDRIP Action Plan mandated by the Act in Chapter 1 — titled “Shared priorities” — states that:
The Government of Canada will take the following measures in consultation and cooperation with Indigenous peoples:
(2) Identify and prioritize existing federal statutes for review and possible amendment, including:
an interpretive provision in the Interpretation Act or other laws that provides for the use of the UN Declaration in the interpretation of federal enactments . . . .
Colleagues, there was extensive consultation both during consideration of Bill C-15 and during the process of the UNDRIP Act on the creation of the action plan.
This amendment may lead to more debate and perhaps a change in focus on the types of witnesses the committee in the other place hears from, but there is no reason that this amendment should single-handedly delay the bill.
This is about taking the next logical baby step towards pairing the words and promises of the government with real action. We have the opportunity to make this amendment now, so why wait?
The Chair: Senator Jaffer had an amendment of an identical nature pretty much identical. I’m going to invite her to express her views in relation to this amendment and her overall perspective.
Senator Jaffer: I second the bill.
As many of you know, I was on the very committee when this report, Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights, was published in December of 2007. At this time, UNDRIP was very new. It had just been internationally adopted in September 2007.
As we discuss Bill S-13, it is important to recognize that this bill is about recognition of the inherent rights of Indigenous people and the implementation of UNDRIP. It’s about the recognition of the rights of Indigenous people to self-determination, the right to their lands, territories and resources and the right to free, prior and informed consent.
As a senator from British Columbia, the first province in Canada to implement UNDRIP into legislation in 2019, I believe that we have an opportunity to learn from our experience and pave the way for other provinces to follow suit. We can identify what worked well and what didn’t, and use that knowledge to ensure that the implementation of UNDRIP is successful across the country.
There have been numerous consultations since 2007 on UNDRIP. It might not have been specifically on Bill C-13, but there have been consultations. I adopt all the remarks made by Senator Prosper, and therefore I ask you to support this bill.
[Translation]
Senator Boisvenu: I have a question for Senator LaBoucane-Benson, first. In terms of the drafting of the bill, does this amendment significantly change the content from the government’s standpoint?
[English]
Senator LaBoucane-Benson: I would ask the officials to answer that. I’m not a lawyer. My first impulse would be to say that, of course, any changes would be a change to the law. But I would ask the officials to answer that question.
The Chair: Ms. Sargent, can you help us on this?
Laurie Sargent, Assistant Deputy Minister, Indigenous Rights and Relations Portfolio, Department of Justice Canada: Good afternoon, senators.
I think, in a sense, yes, this is a substantive change because we’re referencing a very different instrument — an international instrument — as opposed to our Constitution, which was the subject matter of Bill S-13.
As Senator Prosper has said, the two instruments can be read together, and, of course, we see already that they can inform each other. But from a legal perspective, there is a substantial change being brought to the subject matter of the bill.
[Translation]
Senator Boisvenu: I’m a bit torn given what the committee heard from Indigenous women. They said that incorporating UNDRIP into the bill would be a step forward for them, and you know how concerned I am about women’s rights. The committee also heard from Indigenous chiefs, primarily men, who said that they weren’t consulted about a bill that incorporated UNDRIP.
Strictly from a political standpoint, if the amendment passes, could a number of Indigenous communities challenge the amendment because they weren’t consulted on the original legislation?
Ms. Sargent: Yes, I think the feedback we received does indicate that there was no consultation or cooperation on this specific amendment. There was extensive consultation on the United Nations Declaration on the Rights of Indigenous Peoples Act action plan, but there was no consultation regarding this particular amendment.
Senator Boisvenu: During the consultations, was the prospect of incorporating UNDRIP into the bill raised with Indigenous chiefs, men or women? If not, why didn’t the government do so?
I see you shaking your head, so I take it the answer is no.
Ms. Sargent: I would say there were two different but somewhat parallel tracks. With Bill S-13, this particular amendment regarding section 35 was known to have the support of many Indigenous peoples, so it was the subject of consultation and cooperation. Under that process, people were obviously invited to submit possible amendments and so forth. Some suggested an amendment like this one. We didn’t hear that across the board. At the same time, consultations on the action plan were taking place, and further to that process, certain people pointed to the possibility of a similar amendment, but no concrete amendment was ever submitted.
That is why it’s in the action plan. We saw that there was an interest and a need to consult on the additional relationship, let’s call it.
Senator Boisvenu: If the amendment was incorporated into the bill, regardless of whether the government passed it, would it weaken Indigenous people’s support for an amended bill that includes UNDRIP?
Ms. Sargent: I don’t think I am sufficiently qualified to answer that question. You would have to ask Indigenous people.
Senator Boisvenu: In your view, did the consultations address the integration of the charter in the bill? Was that raised in your discussions?
Ms. Sargent: I wouldn’t say that it wasn’t addressed in our discussions on this amendment.
Senator Boisvenu: Was that due to the resistance of Indigenous chiefs, or did the department intentionally not raise the issue?
Ms. Sargent: We listened to what people were saying. The emphasis was really on proposed section 30.
Senator Dupuis: I have a question for Senator Prosper. How would your amendment affect the provision in Bill S-13 repealing the non-derogation clause in the act implementing UNDRIP? I imagine you’ve thought about that, so I would like to hear your views.
[English]
Senator Prosper: Thank you for bringing this forward, Senator Dupuis. If I understand your question, I think it would create an appropriate lens by which it would provide a mechanism or a framework of interpretation that would be comprehensive in scope, and it would integrate section 35 — which is well established in Canadian law; there’s much jurisprudence in that regard — with domestic law involving the UNDRIP Act and the declaration itself.
We’re sort of at the infancy stages with respect to the relationship between section 35 and the declaration. It’s still up to the courts to interpret how that relationship is going to take place. There’s always the opportunity for infringements, for justification. That’s still intact. But my suggestion is that if we have the chance right now to provide the much-needed clarity for the sake of Indigenous people and all Canadians, then why don’t we do it now?
[Translation]
Senator Dupuis: In your amendment, you refer to “every law” — “toute loi fédérale” in French — when Bill S-13 uses the term “enactment” in English and “tout texte” in French. Why?
What led you to opt for the term “law” in the amendment you’re proposing to clause1?
In principle, Parliament does not speak in vain. Introducing a new term could be equated with introducing a new concept. I’m trying to understand what led you to go with the term “law” in your amendment.
[English]
Senator Prosper: I guess when I’m thinking about every law, and I guess I’m struggling to precisely know the distinction between enacting a law and the additional sort of meaning attributed to enactment, that’s probably my fault in that regard.
It sort of goes to the point that when it relates to interpretation I’m considering within this regard all federal laws and regulations. That is the crux of what I think the bill in itself seeks to address — to look for that consistency. That would be my response to that.
[Translation]
Senator Dupuis: I have a third question. You proposed an amendment, so you’re the person I’m directing my questions to.
As far as the Interpretation Act and section 35 are concerned, over the years, the jurisprudence has established a whole mechanism for consultation since 1982. Among other things, the parameters and steps of the consultation have been defined. You also said that, with respect to UNDRIP or the act to implement it, work on an action plan was under way.
The act to implement UNDRIP provides for a much more stringent and comprehensive consultation process, given that it uses the language “in consultation and cooperation.” This involves the codevelopment of standards, and it’s much more stringent, with more restrictions on the government. Shouldn’t rights holders be given the opportunity to develop and codevelop with the government the standards that will apply to the declaration?
We are talking about two legal and political realities. Putting all of that into the Interpretation Act would totally bypass what people told us during the consultation process.
[English]
Senator Prosper: Thank you for your question. I take your point about that mechanism to exist between a collaboration effort between government and Indigenous peoples. What I would provide in response to that is that, in my mind, there is no reason for that collaboration effort to exist with this amendment. If anything, it can provide the impetus for government to come to the table with Indigenous people and work on that collaboration effort.
We do have section 35, correctly, and we do have the declaration. There’s a need for a dialogue to flesh out that meaning and what the two coming together is all about. That’s for future consideration and discussions, I would suggest.
Senator Batters: My question is to Senator LaBoucane-Benson, who, in addition to being the sponsor of this government bill, is also the Government Deputy Leader in the Senate.
Senator LaBoucane-Benson, I’m assuming that the government is opposing this amendment. Maybe I’m not correct in that. If the government is opposing this amendment, why?
Senator LaBoucane-Benson: I thank my honourable colleague for her question. It is true that the government is opposing this amendment. I sponsored the bill, and we worked hard to get the UNDRIP Act passed; it wasn’t easy. It took a lot of work and consultation to get that act passed. Even after all of that, many groups came to the government and said, “We want to be consulted differently and more.”
When it came to Bill S-13 — this is something that I have heard about in ceremony — putting a non-derogation clause in the Interpretation Act for years. When the Métis National Council came here and said that they’ve been working on it for 15 years and when Inuit Tapiriit Kanatami, or ITK, said they’ve been working on it for 25 years, those are not just random numbers.
Elders and leaders have been working on this for a very long time. Indigenous people brought the non-derogation clause to the government and said, “We want this.” The government had to turn around and ask, “Okay, how do you want it? Do we have the negative version or the positive version? Do we use ’Indigenous’ or ’Aboriginal’ such as in our Constitution?” There were many conversations about which version you take. Some legal counsel to nations said it should be done one way and some the other.
The government collected that information and put this bill before us. Even then, nations said that they weren’t consulted in the way they wanted to be.
Consultation is something that I wish we would study. People throw the word “consultation” around in the Senate quite freely, and I don’t think we’re settled on what real consultation is. But what I do know is that the government still doesn’t have it right. They’re working on it and trying, but it’s a process to make it happen.
When you ask me why I’m opposing this, I would love to see an UNDRIP clause, but I would say — and we’ve heard from many Indigenous leaders — they’re not ready. They have not landed on the phrasing they want. They have not landed on any of that.
But you know what they do know? They do know that they want this non-derogation clause, and they do know they want this bill as it is. So the government is not able to say, “We know what’s best for you. We consulted with you on the UNDRIP Act, so you must want this.” As an Indigenous person listening to Indigenous leaders, that’s not the case. They’re not ready for it. They want it, but they want to be consulted.
The last thing I’ll say is that inherent in those 46 articles of UNDRIP — the essence of it — is self-determination. Indigenous people have fought so hard to have a voice. They’re asking us, many of them — many rights holders — are saying, “We still want a voice in how this amendment to the Interpretation Act is made. We want you to come and talk to us about it.”
Then I would say, at least where I live, pipes will be raised. They’ll be taken to ceremony. They’re going to pray on it. They’re going to do their work as makes sense in their culture to figure out how they’re going to do it. That just hasn’t happened yet. That’s why the government is opposing.
Senator Klyne: I’d like to refer to a few of the responses that were provided by some of the leaders on the idea of including UNDRIP. I’ll try to be quick.
President Natan Obed of ITK said that, from their perspective, they had not imagined that this particular exercise with this particular piece of legislation — meaning this particular exercise of working in UNDRIP with this legislation — was the place; they had not imagined this would be the place where they would do this work. The principle of the ability for Canada as a nation-state to comply with UNDRIP and to confirm its laws, hopefully, can be productively reached by the end. In other words, the Government of Canada needs to expedite it, but not here.
The response from Eva Clayton, President of Nisga’a Lisims, was that Bill S-13 should be passed without it, but it needs to be done in the future. She went on further to address Senator Patterson by saying that she didn’t think anyone is against Bill S-13, apart from suggestions to add UNDRIP. She feared we would be adding a layer of complexity and perhaps even controversy if we add an amendment relating to UNDRIP, even with the best of intentions. Her feeling was that we should fix this long-standing issue, which is that of Bill S-13 with the Interpretation Act, standardizing the non-derogation clause and send the bill, so we can have swift passage in the House of Commons. She concluded by saying that the bill should pass, and then we should do the necessary work to make sure any language about UNDRIP has the appropriate precision, clarity and meets everybody’s needs.
Marie Belleau, Managing Legal Counsel of Nunavut Tunngavik Incorporated, also said in a general response that Bill S-13 should pass without UNDRIP because that should be added in the future.
Jackson Lafferty, Tlicho Grand Chief, disagrees with the inclusion of an UNDRIP clause in the bill. They support the inclusion of UNDRIP, but this just needs to be moved further along, in their opinion. If Canada chooses to contemplate the idea at a later date, they support that, but they do not see it as being part of the current conversation of the tabled bill. UNDRIP is a separate entity of non-derogation clauses, or NDCs, which have been worked on for 20 years, and including it will delay the whole process.
Will Goodon, representing the Manitoba Métis Federation, said that no further consideration should be given to an UNDRIP addition to the bill, as they don’t want to see Bill S-13 delayed any further. In response to Senator Simons, they support the UNDRIP clauses, but they should be in a different bill, as time is needed to go back and do consultations properly and make sure steps are taken towards that objective properly. They feel that while the idea of such a clause is certainly worthy of consideration, and there can be no question about the Manitoba Métis Federation’s support of UNDRIP, they have not been presented with or consulted about any specific worry. There could well be complex issues of exactly how this provision should work, and they understand there’s already been litigation as to the meaning of a similar section in the B.C. Interpretation Act.
He said that the Manitoba Métis Federation continues to be involved in consultation and engagement around the ongoing development of the federal action plan, and they would be very open to discussions about such a clause as already contemplated in section 2 of the 2023-28 Action Plan. However, to date, there have been no consultations or cooperation with the Manitoba Métis Federation about the proposed clause. They strongly urged that Bill S-13 is not delayed while further consideration is given to an UNDRIP addition to the bill.
The Métis National Council President Cassidy Caron doesn’t think it should be included in Bill S-13. In response to Senator Simons, she said that they’re fully supportive of the United Nations Declaration on the Rights of Indigenous Peoples. They’re also supportive of the language presented in Bill S-13 as it stands right now. Concerning the inclusion of UNDRIP, it is supported but needs to come back to the Métis government for consultation. They don’t want to delay this any further. At this time, she said the Métis National Council is focusing its efforts on the UNDRIP Action Plan, as that is where their priorities for the implementation of UNDRIP are set out.
Finally, Judy Wilson, former Kukpi7 Chief, said that there is no necessity to amend this, as NDC has that effect already. The UN declaration is a minimum of human rights framework — constitutionally protected rights — not their full rights that they exercise on the ground. There is a necessity to include UNDRIP in federal legislation. She said she really did think that the non-derogation clause as it is currently written actually contributes to the ongoing implementation of UNDRIP because it is doing just that.
Senator Prosper, could you comment or respond to those?
Senator Prosper: Thank you for providing those comments, Senator Klyne.
That’s correct. There has been a lot of concern voiced from First Nations representatives, Indigenous representatives, with respect to not having ample opportunity for consultation. I think the overriding consideration for their position is their concern that a certain undue process of incorporating an amendment might jeopardize the whole act in and of itself from proceeding.
There was other testimony from Ms. Metallic with the Indigenous Bar Association; with the Assembly of First Nations representative, Cheryl Casimer; Ms. Niman with the Native Women’s Association of Canada, who voiced their position with respect to having the declaration included within Bill S-13.
Currently, there is no substantive argument, to my knowledge, of not considering the declaration voiced from those individuals other than, yes, consultation and a certain fear with respect to this prolonging the process and maybe jeopardizing the passage of the act in and of itself. That is legitimate in its own right, and I get that.
More or less, the way I am approaching this is that there is no opposition to the declaration generally among Indigenous peoples. You will never get 100% consensus, but there has been a lot of effort invested by government and by Indigenous people with respect to the passage of UNDRIP and the action plan. There is similar language within each.
I’m just saying it’s not a big jump here with respect to incorporating something like that within this piece of legislation. There’s certainly a fit that exists between them, and it could provide that much-needed certainty for Indigenous groups and organizations to have this certainty. Thank you for that.
Senator Simons: I have two questions, one for Senator Prosper and one for to the officials.
First, I would like to say congratulations. You’ve been in the Senate for a cold minute, and you already have an amendment to an important bill. That’s a big step.
I find myself really torn. When this process began, it seemed clear to me that leaving out UNDRIP was an oversight. I was quite frustrated when the minister was here, and his only explanation was that it was not in there because they didn’t do the consultation. And I thought, “Well, why didn’t you do the consultation? You are the minister.”
At first, I thought, when people were talking about this amendment, this is straightforward. And then we heard again and again from rights holders, and Senator Klyne has enumerated some of them and went through the testimony. I thought to myself that these people are complaining to us that they were not consulted appropriately and in enough depth about this bill. They are saying to us, “Don’t add an UNDRIP clause because we have not been consulted yet.”
Then I thought about who am I to impose my well-meaning efforts to help them in what I think they should want when they are telling me, as Indigenous rights holders, that this is not what they want?
You are in a very different place because you are Indigenous. But what am I to make of the fact that the ITK, the Métis Nation and other First Nations rights holders, especially the ones representing modern treaty holders, have told us explicitly at this table, “Do not do this. We do not want this. We have not been consulted.”
That’s a question for Senator Prosper.
Senator Prosper: Too bad it has to be me. Thank you for that. That exact scenario you just laid out is something that I’ve been grappling with myself because, rightfully so, Indigenous leaders and organizations have been quite adamant and explicit about the need for consultation, not just on this piece of legislation — let’s face it — on other pieces of legislation.
I can only go back to the positions and the work that was undertaken around this table and other tables by parliamentarians and Indigenous peoples just to get where we are right now.
Why do we need this bill in the first place when, theoretically, government must respect constitutionally protected rights? Yet they had to have this provision previously within various acts and now within an interpretation act, and I think it is an overall gain. But it could be better.
The question becomes the role of parliamentarians as well within this process to look at that landscape and that history and come to a point and ask, “Do you think this is a positive thing? Do you think that the extent of consultations that existed through Bill C-15, the action plan and the shared priorities ground this amendment?”
We have not heard anything substantive. I get it — the consultation concerns and the points advanced by this holding up something that’s desperately needed — but that impetus and onus should be on government to follow its own laws within this country.
Senator Simons: I’m sure there are people on the outside, maybe people who are watching this video, saying, “We just consulted. They were all here. You consulted them.” But that’s not the kind of rich, deep, meaningful and purposeful consultation that is required. I am very nervous imposing what I think because I think UNDRIP ought to be in there, but that and 50 cents won’t even buy me a cup of coffee.
As Senator LaBoucane-Benson well knows, in our previous worlds working together in Edmonton, where we were sometimes on the same side of issues and sometimes not, I spent a lot of my 30s and 40s with a big White saviour complex that I have spent a lot of time trying to atone for, and I don’t want to be that person here imposing my belief that UNDRIP should be there over the voices of Indigenous leaders who told us not to do that, that it would be disrespectful to them for us to do that.
Senator Prosper: I would just add that we certainly heard testimony from the witnesses, but we didn’t hear testimony from a vast majority of Indigenous people within this country. The question of imposition is a fair call for need or want of more discussions. When it relates to an imposition, I think we have to look at the landscape. We have to look at what was done and, within our minds, say, “Is this a real imposition or is it something that reflects the intent and spirit of Bill C-15 and what has taken place through the history of all of this?” Thank you.
Senator Clement: I’ll start by thanking Senator Prosper for the amendment, and thanking Senator Jaffer for her long-time commitment to this issue.
We had here around this table a good conversation about consultation, but we’re nowhere near where we need to be in terms of understanding what that should look like or how we should define that — nowhere near where we should be.
But I felt like I was in a place of learning here around that issue. I, like Senator Simons, am in a place of great discomfort as well because I am an ally, but not Indigenous.
Listening to all of this testimony and deciding who am I; how am I to participate? I believe this place of discomfort is my lot in life. It is our lot in life. It is where we need to be living now, all of us. So here I am. I am going to do my job as a senator and say that I listened to the evidence and I am persuaded by some evidence more than others. That’s what I do here.
I was persuaded by the testimony of Ms. Metallic and Ms. Niman because they spoke to the urgency that you referred to, Senator Prosper. Why wait?
Their comments around how UNDRIP speaks to intersectionality, to gender-diverse Indigenous people, to Indigenous women, that UNDRIP speaks more specifically to those aspects than section 35. Section 35 has not been fully satisfying, so here we are.
I want to read because I was struck by what Professor Metallic said:
I do think it’s absolutely crucial. I don’t want to be here 16 years from now talking to senators about why this would be an important amendment. We will not be much ahead in reconciliation if people continue to say that the UN declaration is merely aspirational or non-binding and that it doesn’t affect decision-making today in Canada.
Ms. Niman says:
Leaving Bill S-13 written as is and relying only on the rights contained within section 35 treaty rights treats gender equality as a given, which may perpetuate gender-based disempowerment. . . .
We know that this is not the case. UNDRIP offers specific protections for vulnerable groups within the Indigenous population, including women. It is because of those articles contained within the UNDRIP that the Native Women’s Association of Canada’s constituents have asked for those rights to be affirmed and included within the non-derogation clause.
As I stated at an earlier committee meeting, when we are told to wait because the consultation has not been proper; when we are told to wait because the government has not fully done what it should have done, or provided what it should have provided, people who wait are generally those people who live in that intersectionality, those who are the most vulnerable.
The concern I have, too, with leaving UNDRIP out of Bill S-13 is the ambiguity that that might create. Why have they left it out? Why? I think that that is also problematic. I will support the amendment. Again, I thank you, Senator Prosper, for making it. I appreciate your words. I will end by quoting you, “Why wait?” The next logical baby step towards action is this. Why wait?
Senator Dalphond: I have two questions for Senator Prosper, the sponsor of the amendment.
You referred to the fact that those we heard from, many were opposed too, but we didn’t necessarily hear from everybody. It is difficult to get consensus.
My first question is: Did you consult with other groups, apart from those whom we heard from? We heard from many groups who were opposed.
Senator Prosper: No, I didn’t. I took it from, just like you, the testimony and participation within this committee.
Senator Dalphond: I’m a bit like Senators Simons, Clement and some other colleagues; I am torn by this issue. I want to do good.
I am listening to your perspective, saying we have an opportunity to do something good, which is maybe not what is being proposed by the government, but let’s improve on what has been proposed irrespective of the debate here about the scope of the bill and how we are beyond the scope of it. I am not going to raise that point. I am just going to say, irrespective of that, you say that would be a good thing.
What do you think the government should do? If we amend the bill, as you proposed, and send it back to the other place, what do you think the government should do when the groups who were opposed to us including this, and some other groups, come forward and say, “We were not consulted. We opposed this process. We think that the drafting should be part of the process, and we have something to say about the drafting”?
Senator Dupuis referred, for example, to the use of some words like toute loi, every law instead of every enactment, which is larger than a law — that includes regulation, maybe orders-in-council that are not regulations, it may even include administrative tribunal regulatory decisions. Enactment could be an extensive definition.
Would you say the government has to go forward? If they come forward and say, “We need to be consulted,” that then the government will have the obligation to stop the process and say, “Let’s sit at the table and discuss?”
Senator Prosper: Thank you for your question, Senator Dalphond.
With any enactment, bill or law, there is a certain area of risk — especially when it involves consultation — that you don’t get everyone or everyone doesn’t agree. It’s left to those responsible individuals whether to proceed or not; it’s their prerogative.
When I listened to the testimony, and rightfully so, they have direct concerns related to consultation. But the other component that I thought about was whether there is anything substantively wrong with the inclusion of the declaration within this bill, aside from the fact of their concerns?
When I look at the landscape, as I said earlier, then what water has gone under the bridge involving the declaration? Frankly, it’s considerable when you think about it with respect to the declaration, Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act, the shared priorities. There is a lot of consistency there.
Senator Dalphond: Sorry to interrupt you.
Senator Prosper: Sure.
Senator Dalphond: My question is about the duty of the Crown to consult, which means the government has an obligation to consult. The Supreme Court ruled that Parliament doesn’t have such an obligation, but the government has that obligation.
What that means, when the government receives the bill and then decides, if people are knocking on the door and say, “Hey, hold on. We were not consulted. We would like you to comply with the process. We may even go to court to seek an order to ask you to comply with your constitutional obligation.”
So don’t you think the government, if they are asked too, yes, please, would like to be consulted; that the government would have an obligation to stop the legislative process and to consult? Because the Senate has no obligation to consult. We did hearings. We received ten groups of people of the different groups, which I expect are representative of the reality of hundreds of groups, maybe they are not. I don’t know.
The court said we don’t have the obligation. But the government under UNDRIP has that obligation. Don’t you force the government to enter into that obligation by amending the bill?
Senator Prosper: With respect to the approaches that government will take, certainly they do have the duty and obligation to consult.
They would have to take into context related to that, as I mentioned — and sorry to revisit this again — what exists on paper now within the declaration, action plan and shared priorities, which are things they already committed to and put on record with respect to the Interpretation Act, the declaration and how the UNDRIP Act is to be consistent within the laws of Canada.
In a certain respect, it’s already there in black and white. There’s a whole process that has been undertaken in that regard. I just don’t want to throw all of that out for the sake of “We need to consult” because these aren’t empty words. They are written. They were put there for a reason, and they form the framework and the basis upon which we hope a relationship of reconciliation will emerge. It’s up to government to live up to that obligation and to that perspective.
The Chair: Colleagues, everybody who has signalled their desire to speak has shared their views and posed questions to the sponsor of the amendment. There are five of you who would like to enter into dialogue on the second round. I wonder if I might invite you to be brief — a couple of minutes each — and, ideally, a new point that you might like to share with us.
In light of that hand having gone up, Senator Patterson, I’m going to put you at the front of the list, in a way part of the first round, since you haven’t intervened. Senator Klyne is trying to get more time now; I can see that. Then I’m going to invite Senator Prosper at the end to give a brief conclusion, and, finally, Senator LaBoucane-Benson.
Is that an acceptable way of proceeding? Then, if you’re comfortable, we would call the question on the amendment.
We have Senator Patterson, who hasn’t spoken yet, and then five or so of you briefly in a second round.
Senator D. Patterson: I don’t want to add to what’s already been said or what I said in the last meeting except to say that I feel there was quite a weight of rights-holding organizations, with whom I’m familiar, who wanted the bill passed as is, without delay and without the need for further consultation.
Looking at the discussion we’ve had today, I’ve heard Senator Prosper very eloquently say basically why not do this now, and what’s the harm in this?
I’d like to say that the amendment proposed is really very close to section 5 of Bill C-15, the UNDRIP Act, which also says that the Government of Canada must take all measures necessary to ensure the laws of Canada are consistent with the declaration. That’s the same kind of words that are in this proposed amendment.
The problem I have with this amendment, in addition to my concern about messing up the bill, if I may put it crudely, is that the UNDRIP Act is aimed at the same objection, making sure Canada’s laws are consistent with the declaration. But what is the method to do so? The method to do so, set out in Bill C-15, the UNDRIP Act, is that the minister must, in consultation and cooperation with Indigenous peoples, prepare and implement an action plan.
That’s the vehicle for ensuring that the laws of Canada are consistent with the declaration. The process has started. It’s going to be long. It’s going to be difficult. There are very big challenges to defining how UNDRIP applies to the laws of Canada.
For example, and I’ll just mention this briefly, there’s a lot of concern in Northern Canada, where there have been decades spent negotiating nuanced, complex regulatory processes involving Indigenous peoples, guaranteed voice and representation and the role of the Crown. These processes that have been enshrined into constitutionally protected modern treaties and also into legislation like the Nunavut Planning and Project Assessment Act. How will these interface with UNDRIP, which has a very simple formula for approving developments and projects on Indigenous and other lands? Free, prior and informed consent — what does that mean?
I guess my point here is that I do have a problem with plunking this into the Interpretation Act when Parliament has already agreed on a method for ensuring consistency with the laws of Canada and the declaration, which is through the development of an action plan.
The second thing I want to say is that in law school, I learned that when you have a law, when a law is created, it should deal with a mischief. That was the term I learned from Horace Read at Dalhousie Law School. What is the mischief that this law is intended to correct? The mischief is there are a mess of non-derogation clauses all across the federal framework. We have a list of them here. It’s a mess. There are different words in many statutes.
The people behind this bill wanted to standardize and strengthen the non-derogation clause. That’s the mischief that this bill is intended to deal with, not consistency with UNDRIP. That is an important issue that’s been injected here. But the mischief is fixing up, standardizing non-derogation clauses. I think we should get that job done, and I hate to be accused of telling rights holders to wait, but I do feel that this is the time to finish off this 20, 30-year process that has been longed for and pushed for, now. We will deal with the action plan to define UNDRIP as another major initiative going forward.
It’s a complex one, and I don’t think it’s as simple as just adding a clause to the Interpretation Act.
The Chair: Now, a brief second round.
Senator Jaffer: I have a question for Ms. Sargent, if I may.
When the consultations were happening, you didn’t have UNDRIP in there, right? This was the consultation, right? The government didn’t put UNDRIP in there. Is that correct?
Ms. Sargent: I will say that we had text that really derived from what the Senate had originally recommended, so the 2007 text, which focused on section 35. We did ask the question in later rounds as we were doing our UNDRIP Act action plan-related consultation in cooperation, “Let us know if you think we should be doing something additional.” So it was open. We didn’t have specific text.
Senator Jaffer: But you didn’t have it in front of them?
Ms. Sargent: We didn’t have text, no.
[Translation]
Senator Boisvenu: I want to thank all the senators for their comments. They have been very informative.
This feels like a constitutional amendment, so much so that I’m realizing just how big of an impact incorporating UNDRIP will have on government departments. My sense is that the work of consulting Indigenous communities was only half done. It’s as though they were invited to look at the front entrance of the house and told that this was what they were being offered, but ultimately, they’re being told that they are being offered the whole house.
Senator Patterson said it well. This bill works for Indigenous communities today, in 2023. There is still work to do, and I don’t think it’s our responsibility to rush them into doing that work. That responsibility has to be left to the communities. They should be given the tool they want, and the next steps should be left to them. We shouldn’t be rushing them down this road.
I agree with senators Klyne and D. Patterson that Bill S-13 is the tool they want and that’s what we should vote on.
Senator Dupuis: As Senator Prosper said, the courts were the ones who, in piecemeal fashion, defined the duty to consult with respect to the constitutionally entrenched rights in section 35 of the Constitution Act, 1982.
If we pass this amendment, I feel we would be bypassing the process set out in the act to implement UNDRIP, whereby consistency has to be achieved in consultation and cooperation with Indigenous peoples. It goes further than that, since paragraph 6(2)(b) — the action plan, the mechanism for ensuring consistency — stipulates the following:
measures related to monitoring, oversight, recourse or remedy or other accountability measures with respect to the implementation of the Declaration.
It’s clear that the idea is to establish measures that are a lot more binding on the government. I completely agree. However, I don’t agree with letting the courts continue to interpret the laws as though men and women didn’t have equal rights. It’s been in the Constitution since 1982. We have to specify that in an interpretation act.
My view is that we shouldn’t let the government off the hook by saying that because it’s now in the Interpretation Act, it does not need to clearly define how it’s going to ensure consistency between the laws and the declaration. That’s really my main concern. For that reason, I will not be voting in favour of the amendment.
[English]
Senator Simons: This is for the officials. As this bill was drafted, as Senator Prosper correctly points out, there are all kinds of jurisprudence about what section 35 means and what it means in the context of consultation. Presumably, the government has in mind what this bill will do with that language.
I asked this question last week, but I’m going to ask it again: If we adopt this amendment, what does that mean, legally? The lawyer who spoke for the modern treaty holders suggested there could be unforeseen consequences, but I don’t know what those consequences would look like. If we change this legislation, what happens, practically speaking?
Ms. Sargent: Listening to the discussion today gives us a sense of some of the potential unforeseen consequences. The reality is, of course, that because we’re only just receiving it now, we haven’t had the chance to really study it.
But the question of the interaction of the proposed UN declaration clause in the Interpretation Act and how it interacts with the UNDRIP Act itself, which contains similar and potentially overlapping provisions, is one that, from our perspective, is certainly something that we would prefer to spend a bit more time thinking about. It’s a bit hard to say right now.
Senator Klyne: UNDRIP is an act, a piece of legislation, and is currently in the consultation phase, developing its 2023-28 action plan. When that phase is complete, UNDRIP will still be here and will be an act. However, it will be a piece of legislation ready for implementation to ensure its aims and objectives are fulfilled.
When you consulted the Métis National Council, the Manitoba Métis Federation, the ITK and regional chiefs, you were consulting those people. These are elected people. They don’t come to these things without having knowledge and consultation of their members. They’re elected people. When you talked to Métis National Council, you were actually talking to the Métis Nation of Saskatchewan, Métis Nation of Alberta and other stakeholders. President Cassidy Caron was very specific about what she said. She didn’t think about that when she was flying on a plane here by writing something on a napkin. She came here with terms of reference and what she had to deliver. She was very clear, and, I would say, committed, convicted and confident about what she was saying when she answered your questions.
It was the same for the Manitoba Métis Federation. They have thousands of members, and they’re elected. You can bet that William Goodon was here delivering a message on behalf of the president, who had clear direction about where to go with this.
It was the same thing with President Obed, who is an elected person, who knows what his constituents wanted, and he was here representing those voices. He doesn’t have to go on a payphone and tell them he has another question. He knows what he’s doing. He has his directions.
When you talk to regional chiefs, you’re talking to tribal councils. They bring those regional tribal councils’ perspectives to the table. You can be confident of that.
When you’re talking to the Assembly of First Nations, you should probably talk to the regional chiefs. They’re the ones who really have the direction, and they will create resolutions for the Assembly of First Nations to follow; the Assembly of First Nations gets its direction through regional chiefs and resolutions.
It’s not unlike when you’re studying a business matter, and you call in someone from the Canadian Federation of Independent Business. You’re talking to Canada’s small businesses. It’s the same when you call the Canadian Chamber of Commerce; you are talking to the businesses that have memberships in all the chambers across the country. It is no difference when you’re talking to others. If you’re talking to one, you’re talking to many business members there.
The Chair: I’m going to invite Senator Prosper to say offer some concluding observations, as well as Senator LaBoucane-Benson. Then, subject to your agreement, we’ll move to a vote.
Senator Prosper: Thank you, colleagues, for your questions and comments.
I just want to reiterate that this is essentially not about creating law; it’s about interpreting law. There are a lot of questions related to consistency, mischief or even the testimony before us. The thing I rely upon and look back to is providing the greatest amount of clarity that is needed at this time as it involves Indigenous, Aboriginal and treaty rights. There are complexities between section 35 and the declaration as to how they will intertwine. But they do inform each other. They are connected. One breathes life into the other.
We don’t have an attorney general to really put to task government and really put our rights forward. There’s no mechanisms within the Department of Justice to consider constitutional matters involving the Charter, not for section 35.
So it’s an opportunity. I just don’t want us to miss that opportunity. The landscape we have been through with respect to the declaration and the consensus that exists are substantial, and I really don’t think they should be overlooked.
If there are issues with respect to what government does with it, then they should be held accountable to their statements and to their track record with respect to moving forward on this.
Thank you very much.
Senator LaBoucane-Benson: First, I want to start by thanking Senator Prosper. Congratulations on bringing your proposal forward. You have debated your proposal admirably.
Some Hon. Senators: Hear, hear.
Senator LaBoucane-Benson: You did a really good job.
I also want to acknowledge that you’re a former chief and a rights holder, and that I hear you when you’re calling for expediency. I’m not an overly patient person myself, and I understand where you’re coming from.
I also want to convey my respect and admiration for the work of Professor Metallic. She gave testimony when we were debating Bill C-92, and I have been a fan ever since. She’s a formidable professor.
I also thank my colleagues for this excellent debate. I feel like some of the leaders who have passed would just be giggling with happiness that this is what we’re debating now; that this is the level of debate. It’s such an engaged discussion about rights, about who the Senate is and our place in this undertaking. I’m very happy to be a part of this.
I have a few comments. We heard from multiple witnesses that process matters, and the reason you go through a consultation process is that things that initially appear simple often end up being more complicated, especially when you’re dealing with technical legislative language.
This amendment that is before us seems pretty straightforward, but it could be phrased in many different ways. For example, the amendment says, “Every law of Canada is to be construed as being consistent with the Declaration.” That’s not the same language Indigenous peoples have agreed upon in this bill regarding section 35, which says, “Every enactment is to be construed as upholding . . .” section 35 rights.
Legally speaking, is there a difference between “being consistent with the United Nations Declaration on the Rights of Indigenous Peoples” and “upholding” section 35 rights? I don’t know. But I imagine it’s something about which reasonable people could disagree. I could certainly see a court somewhere down the line trying to figure out why Parliament used one word in one instance and a different word for the section 35 piece.
Another example is that the section 35 provision in this bill includes both an affirmative and a negative component. It says that no enactment is to be construed as abrogating or derogating from section 35. That’s not part of this amendment with regard to UNDRIP. Maybe it should be. I’m not sure.
Also, the section 35 provision in Bill S-13 refers to “Every enactment . . .” whereas this amendment refers to “Every law of Canada . . .” as I believe one of my colleagues has already spoken about. This might be a significant distinction because the Interpretation Act defines enactment as, “. . . an Act or regulation or any portion of an Act or regulation.” But the term “law of Canada” is not defined.
Again, I don’t know what the best approach is. I’m asking these questions simply to point out that there’s a lot for a serious consultation process to dig into, and Indigenous representative organizations have asked us for the time they need to do that work.
Finally, to the point about women’s rights, the Native Women’s Association of Canada is a valuable advocacy group. As an Indigenous woman, even though they don’t represent me as a Métis woman, I’m immensely grateful for the work they do nationally. I would remind the committee, though, that we heard very different views from several eminent Indigenous women, including President Caron of the Métis National Council, President Clayton of the Nisga’a and Marie Belleau, who is the managing legal counsel for Nunavut Tunngavik Inc., and I was thoroughly impressed by her.
At minimum, I think we have to concede that Indigenous women have a diversity of perspectives on this question. I’ll add my perspective, which is that Bill S-13, as it stands, would be a milestone achievement in Canadian law and Indigenous rights from the perspective of many leaders across this country.
As Ms. Belleau told us, it’s, “. . . the product of years of wordsmithing.” I don’t think we should be circumventing the consultation process at the last minute against the wishes of numerous Indigenous rights holders, even if we think the consultations may not be necessary because of the work done on the UNDRIP Act. Many Indigenous representative organizations appeared before us and told us they want time for proper consultation before UNDRIP gets added to the Interpretation Act. Meanwhile, they said they want Bill S-13 to become law as it is, as quickly and efficiently as we can.
I think we should respect their request. Hiy hiy.
The Chair: Colleagues, I think we’ve had a rich, thoughtful and remarkably insightful and respectful debate. I don’t feel it’s really my role, but I want to congratulate you and express my appreciation — each to each other.
I’d like now to move to a vote on the amendment, if I may. It is moved by the Honourable Senator Prosper that Bill S-13 be amended on clause 1, page 1, line 1, by — here I’d like someone to say, “Dispense.”
Some Hon. Senators: Dispense.
The Chair: Thank you. I now invite you to vote on this motion. All those in favour of the amendment please say, “aye.”
Some Hon. Senators: Aye.
The Chair: Those opposed.
Some Hon. Senators: Nay.
The Chair: In my judgment, the motion in amendment is defeated. We’ll have a roll call vote.
Vincent Labrosse, Clerk of the Committee: The Honourable Senator Cotter?
The Chair: No.
The Clerk: The Honourable Senator Batters?
Senator Batters: No.
The Clerk: The Honourable Senator Boisvenu?
Senator Boisvenu: No.
The Clerk: The Honourable Senator Clement?
Senator Clement: Yes.
The Clerk: The Honourable Senator Dalphond?
Senator Dalphond: No.
The Clerk: The Honourable Senator Dupuis?
Senator Dupuis: [Technical difficulties]
The Clerk: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
The Clerk: The Honourable Senator Jaffer?
Senator Jaffer: Yes.
The Clerk: The Honourable Senator Klyne?
Senator Klyne: No.
The Clerk: The Honourable Senator Kutcher?
Senator Kutcher: Yes.
The Clerk: The Honourable Senator Patterson?
Senator Patterson: No.
The Clerk: The Honourable Senator Prosper.
Senator Prosper: Yes.
The Clerk: The Honourable Senator Simons?
Senator Simons: No.
The Clerk: Yeas: 4; nays: 9; abstentions: nil.
The Chair: Colleagues, I declare the motion in amendment defeated.
Senator Simons: I did not draft an observation, which is a product of my neglect. This has been such a remarkable afternoon. I hope that maybe we could agree to add an observation about the importance of UNDRIP and the consultation necessary.
The Chair: In that respect, although there’s nothing on the table, perhaps you would leave it to the steering group to produce a few short sentences to make the point you just described. Is there a general consensus on that point?
Hon. Senators: Agreed.
The Chair: Thank you. We were hoping for a bit more work. Thank you, Senator Simons.
I’ll now move, if I may, to a consideration of the bill once again. Shall clauses 1 to 10 carry?
An Hon. Senator: On division.
The Chair: On division. Shall clauses 11 to 20 carry?
An Hon. Senator: On division.
The Chair: Agreed on division. Shall clauses 21 to 30 carry?
An Hon. Senator: On division.
The Chair: Shall clauses 31 to 38 carry?
An Hon. Senator: On division.
The Chair: On division. Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill carry?
An Hon. Senator: On division.
The Chair: On division. I was scratching out the point about observations, but the committee, I think, agrees that we will produce a short observation in some dialogue with the assistance of the team, to be looked at by steering. If there’s any controversy, we will share it more broadly. Is that fair?
Hon. Senators: Agreed.
The Chair: Actually, I’m trying to make eye contact with Senator Batters because I know she’s anxious. It’s relatively straightforward, but if there is any concern, we would return it to the committee for consideration.
Is it agreed that I report this bill, with brief observations, to the Senate in both official languages?
Hon. Senators: Agreed.
The Chair: I think, colleagues, that concludes our central business for today.
I want, again, to extend my thanks to the representatives and officials of the Department of Justice for their extremely helpful, frank and useful responses to our questions — sometimes tricky ones, sometimes not so. We very much appreciate it. Thank you for the time you extended to us today.
I also want to express my thanks to each of my colleagues for your work in considering the clause-by-clause discussion of Bill S-13. In particular, thanks to Senator Prosper, a relatively new member, who, under cross-examination, acquitted himself very well.
If I may also say, out of thanks and in deference to Senator Patterson, Senator Prosper has now joined the committee in the capacity as a member of the steering committee of the Legal Committee, and we want to welcome him in that role. I’ll adjourn the meeting now and invite, ever so briefly, a short discussion of —
Senator Dalphond: — motion to replace him? Because otherwise we’ll do the motion so that he becomes a member of steering.
The Chair: I’m being advised not to. We don’t need a motion. We don’t have a say, Senator Prosper. Welcome.
The meeting, colleagues, is now adjourned. Thank you again for your consideration.
(The committee adjourned.)