United Nations Declaration on the Rights of Indigenous Peoples Bill
Second Reading--Debate Continued
April 2, 2019
Honourable senators, I have a few quick words in support of Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.
One common thing I often hear from non-Indigenous Canadians is that Indigenous issues are “too hard,” they are “overly complicated” and “fractious.” As a result, many of these people just throw their hands up in the air and give up. They freeze. They absolve themselves of doing the difficult work because it is just too difficult. Even when handed a potential blueprint for a way out of the Indian Act, as Jody Wilson-Raybould offered our last Prime Minister, these efforts will be waved away as “too difficult.”
There always seems to be a reason why we cannot decolonize this country. There is always a reason why we can’t dismantle the Indian Act. I would like to suggest that with Bill C-262 we have an excellent opportunity. This can be a catalyst to eliminating the Indian Act altogether.
I know that some non-Indigenous lawyers in the Indian industry and some chiefs may be shaking their heads as I speak. They will surely try to convince you that it’s too hard. But who benefits when things are hard? There will always be people who defend the status quo because it serves their interests. This declaration must not be considered purely aspirational. Viewing it that way will keep us trapped in colonialism for another 100 years. We need to do the difficult work of defining “free, prior and informed consent.” These are difficult conversations, but we can’t avoid them just because they’re difficult.
Can the United Nations Declaration on the Rights of Indigenous Peoples be a replacement to the Indian Act? Is it a framework for reconciliation? The declaration sets out minimum international standards of achievement to be pursued in the spirit of partnership and mutual respect.
My friend and Innu lawyer, Armand MacKenzie, has said:
The rights recognized in the declaration constitute the minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world.
In terms of self-government arrangements, UNDRIP, in its Article 3, recognizes one of the most fundamental human rights enshrined in the International Pact on Civil and Political Rights by stating that Indigenous peoples have the right to self-determination.
By virtue of that very right, they freely determine their political status and freely pursue their economic, social and cultural development.
UNDRIP further develops in Article 4 that Indigenous peoples, in exercising the right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.
This caveat or addition was mentioned to reassure nation states some level of comfort with possible threats of secession.
Mr. MacKenzie also states:
Any political or judicial reforms related to the Indian Act should be executed bearing in mind that fundamental principles found in UNDRIP:
1) Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their Indigenous origin or identity.
2) All doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable socially unjust;
In this context the Indian Act would not abide by all basic human rights standards and would need to be repealed and replaced with self-government arrangements as proposed by the Royal Commission on Aboriginal Peoples or as envisioned in the defunct Charlottetown constitutional accord with respect to self-government for Aboriginal peoples.
Colleagues, there will be passionate debates about the word “veto” and who will have a veto over what. There should be.
However, while we argue passionately and seek to persuade each other, please remember that these lands were occupied and governed prior to the arrival of newcomers concerned about vetoes. New groups arrived and gave themselves a veto over everything.
I would, colleagues, encourage you to ask the hard questions to work together to make the declaration real.
It shouldn’t just be a nice little poem about Indigenous peoples and how they feel.
We must use this opportunity to undo some of the damage of colonialism and make our laws fairer to Indigenous peoples.
In my former capacity as national chief, I participated in the negotiation of the declaration from 2001 to 2007. I would like to share briefly my experience about how difficult it can be at times being an Indigenous leader dealing with the government.
Since the mid-1990s, the Government of Canada funded Indigenous peoples to assist them in negotiating the words that eventually became the declaration we are talking about. I thought that previous governments were on board with the language, but they were not — at least not fully.
In 2007, I learned that the Government of Canada accepted the declaration, but not when it came to the articles dealing with lands and resources. I strongly advocated against this position because the government did not believe that Indigenous peoples should have the right of veto over their own lands. Let me repeat that: The Government of Canada did not believe in or support the idea that Indigenous peoples should have the right of veto over their own lands. To all those who may support that view, I ask: Why should the government have a right of veto over Indigenous lands?
I have a final point to make, honourable senators. It was suggested to me at the time that the government’s position was not really the elected government’s position. It was the position of individual senior public servants at Indian Affairs and the Privy Council Office.
I quickly found out that — contrary to popular belief — politicians, regardless of political stripe and colour, are sometimes dissuaded from taking action by an overly cautious public service. As confirmed to me by three former Indian affairs ministers, when it comes to Indigenous rights, the position of some within the public service is not to ruffle any feathers and to avoid rocking the boat. In other words, the status quo.
Of course, like all of us, public servants have a job to do. Most of them do it well and offer the elected government their best advice. However, sometimes sensible caution can turn into an inability to move at all. Regardless, at the end of the day, the position of the bureaucrats became the position of the government.
Honourable senators, we have the opportunity to move forward beyond the status quo. Let’s push back against bureaucratic inertia. Let’s rock the boat. Let’s ruffle feathers, but in a positive way. Let’s send this bill to committee so we can properly study how to harmonize our laws with the United Nations Declaration on the Rights of Indigenous Peoples without reservation. Meegwetch.
Honourable senators, I, too, rise to speak tonight on this bill. The short title is the United Nations Declaration on the Rights of Indigenous Peoples Bill. I want to congratulate the sponsor Senator Sinclair and I want to commend the originator of the bill M.P. Romeo Saganash.
I’m not the critic of this bill, but I’ve followed closely the interventions from many senators in the chamber over the past few months, and I’ve posed questions to many senators who spoke at the conclusion of their remarks. It’s my turn now, I guess, to speak to the bill and to lay out my thoughts for consideration by this chamber.
First, I want to say how vital I believe it is that Canada and the 95 per cent of Canadians who are not Indigenous find a way to a peaceful, healthy and prosperous relationship with the Indigenous citizens of this country. This, in my opinion, is the issue of our time. If we don’t soon find our way together down the right path, we will be destined to endure the further decades of court hearings and acrimonious wins and losses that they create. I believe that civil unrest cannot be far behind, as Indigenous and non-Indigenous citizens react to this escalating conflict.
So what’s the right path? In order to be on the right path, I believe we must first see clearly the vision for the future, stand and in our minds bask for a moment at the ideal future and document and remember what it is we see. I’m confident that the future that Indigenous Canadians would see for future generations would, frankly, not be much different than from all other Canadians: freedom, prosperity, health, a vibrant culture that includes identity, a strong and supportive community, personal and family security, and happiness and well-being.
If we look around the world, we know that just laws — just laws — and stable governments are the very foundation of such an ideal future. For most Canadians, we already have these tenets and we recognize them every day. Indigenous Canadians do not.
For more than a century, Indigenous Canadians have endured unjust laws and successive governments with agendas that have been at worst malicious and at best misguided. In recent decades, governments have become more subtle and nuanced in their dealings with Indigenous peoples, often using jargon and soothing words to cover their actions or their inactions.
As Jody Wilson-Raybould said in a keynote address last year in Saskatchewan:
But words are also easy/cheap. And too often we see the tendency — especially in politics — to use important words that have real meaning and importance carelessly. We see them being applied to ideas and actions that in truth do not reflect their actual meaning — even, sometimes, their opposite.
Colleagues, my biggest fear is that we pass this bill, thinking that it is merely symbolic, that it can be passed and somehow ignored or minimized or, worse, that we’ll just leave it to be interpreted through decades in court. That would be a continuation, in my mind, of the kind of cynical and hypocritical actions that have placed us in this shameful and dysfunctional relationship with the Indigenous peoples of Canada.
Bill C-262 has, in my mind, the clear intention of incorporating into Canadian law the words of the United Nations Declaration on the Rights of Indigenous Peoples. It needs to be taken seriously. I take it seriously. I read the bill. It’s not a hard read. It’s only a couple of pages. I took the time to ride along on a meeting that Senator Massicotte had arranged with Mr. Saganash and with his legal adviser who helped him draft the bill.
There’s a clause in the bill — I think it’s two pages — which says:
4 The Government of Canada, in consultation and cooperation with indigenous peoples in Canada, must take all measures necessary to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples.
I actually asked Mr. Saganash and his legal adviser if that meant that it was their intention to codify every last word of the United Nations Declaration on the Rights of Indigenous Peoples into Canadian law, and the answer was, “Yes.”
I want us all to realize that this is not symbolic. This is not something that is intended to be aspirational or something that we can, with a wink and a nod, say will have no effect or that it doesn’t mean what paragraph 4, out of six paragraphs in the entire bill, says it needs. If I’m wrong, then I want to hear about it at committee. I’m sure that all of you will want to hear about the answer to that particular question in the report from committee.
The second issue for me is actually in the United Nations Declaration on the Rights of Indigenous Peoples, and many have talked about it. Senator Brazeau just mentioned it. I support the UNDRIP in its entirety, with the exception of the word that gives me heartburn, which is “consent.” What does that mean? Well, this word and its meaning seems simple enough. Webster’s has a definition. The Supreme Court has provided a meaning, albeit mostly in criminal behaviour, but it seems pretty clear that the supremes came down on the side of a definition that is often described as “no means no.” To me this means in no circumstances where the UNDRIP cites consent, it means a veto. It means: No means no.
However, there are many people who support the bill and suggest that consent is not as clear as it appears to me, that it is more nuanced, that there may be some kind of a reasonableness test that ought to be applied to “no means no,” or “consent.” Or that there may be some way to mitigate the word and its meaning.
I think, colleagues, the entire issue of how we apply sober second thought to this bill turns on the definition of “consent.” I’m prepared to listen carefully to the experts at the committee.
If, as it has been suggested, the word “consent” as it applies to this bill means something less than a veto, then what it means needs to be made clear through the upcoming committee study and their report to the Senate, including perhaps some clarifying language incorporated into the bill by amendment. I think this would go a long way to easing the worries of many of us in this chamber and indeed across the country, and it would allow us to celebrate an important step on a path to a better future for Indigenous Canadians.
However, if it turns out that consent equals a veto or anything approaching a veto for Indigenous people over activities and projects affecting their traditional lands, then we need to know that before we vote on this bill and bring it into law. We would then need to consider the enormous ramifications to our country. We would need to consider if Canadians are aware of and understand and support such a thing, and it would be reckless to do anything other than that.
It should be clear to all of us that the upcoming hearings at the Aboriginal affairs committee as it pertains to Bill C-262 are vitally important, and they must provide us with the clarity that we need on this bill’s impact and on this question of consent.
It’s also clear that after decades of work and negotiation and hope, this bill and all it stands for represents one of the most powerful statements that Canadians can make to finally show respect and recognition to our Indigenous citizens, a statement that will result in actions that will forever change our country. Our decision here in this chamber may someday be seen as historic. I believe that we must, with courage and respect, do our best to find the right and the just path. Thank you.
Would the honourable senator take a question?
Absolutely.
Thank you for your thoughtful speech. You’ve nailed some important questions.
The House of Commons surely must have explored that particular issue. Having looked at those transcripts, could you give us a summary of where they came from? Did they say that “consent” was a veto, or did they say “consent” was something else?
I have not looked extensively. I understand that there were some 70 witnesses on this particular bill and I hope we would be at least as thorough. I hope that we would seek to summon some of the witnesses that provided their voice to the other place. I hope we would seek information specifically on consent and on the bill’s impact in Canadian law as it stands now, that we would spend a little more time focused on those two areas. I think that would be the value we could add in sober second thought to get at the very heart of those two issues.
