United Nations Declaration on the Rights of Indigenous Peoples Bill

Second Reading--Debate Adjourned

May 27, 2021

Hon. Patti LaBoucane-Benson

Moved second reading of Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples.

She said: Honourable senators, it is my profound honour to rise in this chamber today as sponsor of Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples.

Before I begin, I’d like to acknowledge the work of the Standing Senate Committee on Aboriginal Peoples, which has undertaken an extensive review of the subject matter of the bill. I thank all of my colleagues on the committee, particularly the leadership of Senator Christmas as chair for the good work we’ve been able to achieve.

Colleagues, this is an historic government bill that will provide a solid foundation for the Government of Canada’s implementation of the declaration. You may recall that the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, was adopted by the General Assembly in September 2007 after decades of work by dedicated Indigenous people across Canada and globally. I would like to specifically acknowledge Cree lawyer Chief Dr. Wilton Littlechild, who chaired many tables at the UN and has worked tirelessly for over four decades with the ultimate goal of realizing true human rights for the Indigenous peoples of Canada.

Canada adopted the declaration in 2010 with some reservations and fully in 2016. I remind honourable senators that in 2019 the House of Commons extensively studied and passed Romeo Saganash’s private member’s bill, Bill C-262. It was also studied by the Senate, but died on our Order Paper at the end of Parliament.

You will also remember that the Government of Canada committed to introducing similar legislation as a government bill in June 2019 in this very chamber, in fact, and further reiterated in the 2020 Speech from the Throne that the UN declaration is key to advancing reconciliation in Canada. I want to acknowledge the many Indigenous people who have worked on the adoption and implementation of this critical human rights instrument in the Canadian context.

In addition, many prayers have been offered at traditional ceremonies across the country to support this effort. I feel humbled to be a very small part of this important movement and help Canada get to the next step in the reconciliation process.

I want to thank you in advance, honourable senators, for your thoughtful consideration of this momentous bill. I wish to acknowledge the efforts of the Minister of Justice, who introduced Bill C-15, supported by the Minister of Crown-Indigenous Relations. Using Bill C-262 as the basis for discussions and dialogue, the Government of Canada held over 70 engagement sessions with Indigenous leaders and other Indigenous partners including modern treaty and self-governing groups, rights holders as well as Indigenous women’s organizations, Indigenous youth and LGBTQ2S+ groups.

Much of the input and advice that was heard is reflected in Bill C-15. Changes made to Bill C-262 include clearly recognizing in the preamble the inherent rights of Indigenous peoples and reflecting the importance of respecting treaties and agreements, emphasizing the need to take the diversity of Indigenous peoples into account during implementation of the bill and more robust provisions relating to developing and tabling the action plan and annual reports, to name a few.

The Government of Canada also held discussions with natural resource sectors and provincial and territorial governments. However, I would be remiss if I did not mention that it is also true that some treaty rights holders do not feel that they have been properly consulted in the development of this bill. In their written submissions and witness testimony, they made it clear that while they support UNDRIP, they are not satisfied with the way in which this bill was developed.

In my discussions with chiefs, particularly in Alberta, it has become clear they worry that the work on UNDRIP will become a distraction for the federal government from their duty to fulfill the obligations of the treaty, some of which have been outstanding for over a century. Truthfully, though, the UNDRIP articles should help treaty rights holders to finally realize the promise of treaties.

But I do not blame any chief or leader who does not trust any government. There is a long-standing history that needs to be healed, and I hope the federal, provincial and municipal governments use the articles of UNDRIP to participate in the healing of these treaty relationships. Clearly, the way in which the federal government engages and meaningfully consults with not only the national organizations but the rights holders needs to be improved in the development of the action plan.

Honourable senators, Bill C-15 is a framework to promote the self-determination of Indigenous peoples within the Canadian legal and social context. It is about creating the methodical, thoughtful and respectful spaces where Canada can work with Indigenous peoples to harmonize federal laws with the articles of UNDRIP.

It’s also about creating an action plan where we can work collectively on the deeply entrenched systemic issues that continue to cause trauma and trauma-based outcomes in Indigenous communities. Bill C-15 calls on the Government of Canada to do all of this in consultation and cooperation with First Nations, Métis and Inuit people. Bill C-15 acknowledges and builds upon section 35 of the Constitution, it embraces the jurisprudence regarding the government’s duty to consult and it reiterates that Canada must use the declaration to interpret Canadian laws.

Unfortunately, when many Canadians hear the phrase “Indigenous self-determination” the information is always in the context of major projects and the definition of consent. We appear to be stuck in a Free, Prior and Informed Consent, or FPIC, rut and unable to discuss UNDRIP in any other context. I happily offer another way to think about the implementation of the declaration.

Honourable senators, in February we were seized with a bill that had many of us — properly so — discussing suicide and the services we need to address mental health issues. Many of us spoke passionately about Indigenous peoples in this context and the need to have culturally appropriate interventions.

Interestingly, in 1998, authors Chandler and Lalonde published the findings of a study whereby they noticed that when considering British Columbia’s nearly 200 Aboriginal groups, some communities showed suicide rates 800 times the national average while in others suicide was essentially unknown. And they wanted to find out why, so they investigated specific indicators in those communities such as self-government, land claims, ownership of their own culturally based police, health, cultural and social services. They found that communities that had taken active steps to preserve and rehabilitate their own cultures were those in which youth suicide rates were dramatically lower. Each of the six markers of cultural continuity were found to be associated with a clinically important reduction in the rate of youth suicide.

That is all to say what they found is that a powerful way to address hopelessness, helplessness and powerlessness that Indigenous youth experience living in communities that are struggling under the Indian Act is to create the space for the self-determination of those communities.

Bill C-15 calls on the Canadian government to harmonize existing and future Canadian legislation with the UNDRIP articles, to create all the enabling legislation we require to finally repeal the Indian Act.

For my colleagues who are concerned about economic development, UNDRIP compels Canada and industry to bring Indigenous people to the decision-making tables at the very beginning of a project. Working within this consent framework ensures that all concerns are equally weighted and solutions include all perspectives. Rather than a veto, it provides a viable, logical way to get to a project approval.

Bill C-15, therefore, would enable enhanced participation of Indigenous communities in the Canadian economy, which would over time help to create stronger and healthier communities, and contribute to jobs and economic growth, ultimately benefiting Canada as a whole. Working within a consent-driven framework is perhaps the only practical way to move important projects forward now and in the future.

It is true that there is a desire from both Indigenous and industry leaders to find a definition of FPIC. It’s also true that we don’t have to reinvent the wheel. We need only look at the work between Indigenous communities and LNG in Canada to see how UNDRIP would work. In addition, the international global compact demonstrates how companies can operate in ways that meet standards in the areas of human rights, labour, environment and anti-corruption. Over 13,000 businesses have already joined the global compact, including many Canadian companies.

As this is a second reading, I would like to quickly provide an overview of the purposes of the bill, the obligations it sets out and how amendments made in the other place have strengthened the bill that is now before us.

Clause 4 outlines the bill’s purpose. It affirms the declaration as a universal international human rights instrument with application in Canadian law. This recognizes that the UN declaration can be used to help interpret Canadian law just like other international human rights instruments. In this way, Bill C-15 reflects existing practice and legal principles that are already being used by the courts today. I want to be clear. Bill C-15 would not transform the UN declaration into Canadian law itself. This means that the declaration would not become legally binding and that it would not be directly enforceable by Canadian courts.

At the same time, the second purpose of Bill C-15 is to provide a framework for the Government of Canada’s implementation of the UN declaration. This framework has two dimensions.

First, the Government of Canada would begin the revision of laws to reflect the standards set out in the UN declaration, while at the same time also respecting the rights that are already recognized and affirmed in section 35 of the Constitution Act. Honourable senators, this process will take some time and will support self-determination and the exercise of self-government, moving us toward a day that the Indian Act will be obsolete. I would remind the chamber that this work is already underway, and as of April 2020, nine federal laws already referred to and were created within the spirit of the UN declaration.

Second, once Bill C-15 comes into force, the Government of Canada is required to work in consultation and cooperation with Indigenous peoples to prepare and implement an action plan to achieve the objectives of the UN declaration. While the specific contents of the plan will be developed collaboratively, the bill sets out broad minimum standards that must be included in the plan. These include: measures to address injustices, combat prejudice and eliminate all forms of violence, racism and systemic discrimination, including systemic racism against Indigenous peoples; measures that promote mutual respect and enhance our understanding through human rights education; and, measures related to monitoring and accountability.

In describing these requirements, the bill highlights that we must consider the specific needs of elders, women, individuals who identify as two-spirited or otherwise representing gender diversity, children and youth and people with disabilities. Through a consultation and cooperation with Indigenous peoples, these minimum standards will be elaborated upon and turned into a plan for action.

The action plan would also include measures for monitoring the implementation of the plan itself and for reviewing and amending the plan. This means the plan can be updated and adjusted over time as priorities change. Honourable senators, if we have learned anything from the past year, it is that we must be able to adapt to change globally, nationally, regionally or even local circumstances.

In response to Indigenous witness testimony, Bill C-15 was also amended at committee in the other place. The amendments include: changing the timeline for the development of the action plan from three years to two years — this is a welcomed amendment heard from witnesses, Indigenous leaders and partners; the addition of specific references to racism and discrimination, including systemic racism in clause 6 of the bill, to ensure consistency — the same language was added to the preamble; adding specific references to the doctrine of discovery and terra nullius in the preamble paragraph referring to all doctrines, policies and practices based on ideas of racial superiority — explicitly referencing these doctrines reinforces that the doctrines have no place in informing our ongoing relationship with Indigenous peoples; the addition of an acknowledgement in the preamble that Canadian courts have stated that Aboriginal treaty rights are not frozen in time and are capable of growth and evolution, which aligns with the recognition of the role of section 35 as a key component of the Canadian constitutional framework. The last amendment was adopted as a grammatical change in the purposes clause, clause 4.

Finally, colleagues, I want you to know that the process of formally implementing the declaration is long overdue. As the Great One, No. 99, famously said, “I skate to where the puck is going . . ..” Canadians are ready for the implementation of UNDRIP and Bill C-15 is truly a reflection of what the majority of Canadians already believe.

A 2020 Nanos poll found that almost two out of every three Canadians agree or somewhat agree that the Government of Canada should implement the UN declaration.

In 2015, the Truth and Reconciliation Commission, after speaking with over 7,000 survivors as well as historians, legal experts and public servants, issued 94 Calls to Action for healing and reconciliation, part of a substantive report about the intergenerational effects of residential schools on Indigenous survivors and their families and communities. The TRC called upon federal, provincial, territorial and municipal governments to fully adopt and implement UNDRIP as a framework for reconciliation.

Colleagues, Bill C-15 is a concrete, legislative response to the findings of the TRC. The TRC also called on all faith groups in Canada to formally adopt and comply with principles, norms and standards of UNDRIP as a framework for reconciliation. Since then, the Canadian Council of Churches, representing 25 member denominations and more than 85% of the Christians in Canada, has supported UNDRIP and more recently supported Bill C-15. The Centre for Israel and Jewish Affairs Canada also published a letter supporting UNDRIP and Bill C-15. There is indeed broad, faith-based support for UNDRIP, such as the coalition called Faith in the Declaration, which is composed of Canadian faith houses and organizations working together to support the implementation of UNDRIP. Faith in the Declaration has stated that:

. . . C-15 provides the federal government with the framework to create the paradigm shift required for a reset; a framework to build trusted working relationships with Indigenous nations and communities that are essential for the pathway away from colonization.

Colleagues, church support for UNDRIP is important. For over a century, religion was used as an instrument of colonization. Children were abducted, forced into residential schools and taught that their spiritual expression — the understanding they had of the Creator and of all creation — was heathen and a form of evil. It is significant that the same churches who led the spiritual colonization of children have not only apologized for their actions, they are also taking action to raise awareness and support the right of Indigenous people to be free from assimilation in Article 8 of the declaration, the right to practise their traditional beliefs through Article 12 and the right to educate their own children through Article 14. This is reconciliation in action.

In conclusion, it is time to commit to upholding and protecting the human rights of Indigenous peoples and to collectively address the impacts of colonization, systemic racism and discrimination. It’s time to meaningfully respond to the Truth and Reconciliation Commission’s Calls to Action, as well as the report into the National Inquiry Into Missing and Murdered Indigenous Women and Girls. It is time to honour the UN declaration and continue to renew and strengthen the nation-to-nation, Inuit-Crown and government-to-government relationships. The time has come to formalize our commitment and create a framework that sets us on a path towards real reconciliation.

Honourable senators, I thank you in advance for the contributions that this chamber is about to make toward the study of Bill C-15. Hiy hiy.

Hon. Mary Jane McCallum [ + ]

Honourable senators, I rise today to speak at second reading of Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples.

I would like to start by reading a relevant quote from author Augie Fleras from the heading “Remaking Canada: Muddling Through Models” found within The Politics of Jurisdiction: Pathway or Predicament. The author states:

Canada is a test case for a grand notion – the notion that dissimilar people can share lands, resources, power, and dreams while respecting and sustaining their differences.

The author goes on to say:

To be sure, the condition of Aboriginal Peoples continues to represent Canada’s great moral failure, of a people both demoralized and dispossessed by a division of wealth in the land that has passed them by . . . . [However] . . . Governments have accepted the idea that Aboriginal Peoples (a) are a distinct society, (b) possess a threatened culture and society, (c) depend on government trust responsibilities for survival, (d) desire more control in line with local priorities, and (e) prefer to achieve their goals in partnership with central authorities. Government acknowledgement of aboriginality as a government-to-government relation is a positive sign (Fontaine 1998) as is the promise to treat Aboriginal Peoples as equal partners in all relevant constitutional talks.

Honourable senators, First Nations in Canada have and continue to look at ways of decolonializing within our own country. As sovereign First Nations, we have been and are still focusing our relationship with Canadians and Canada in a manner that curtails state jurisdiction while reaffirming implementation of our own models of true self-determination. This includes, for many, a re-establishment of their Indigenous legal traditions to ensure that they are a basis of regeneration and reform, both at the local level as well as the national level.

Honourable senators, it’s now time you let us go. We’ve had enough of being kept penned up and unable to fully exercise many of our rights, especially within our own territories. We are tired of fighting oppression in its many forms and want instead to walk ahead into our future with our rights intact and substantive, whether they are human rights, land rights or natural resources.

To quote again from author Augie Fleras’s aforementioned work, he states at page 107:

Indigeneity as a principle not only challenges the legitimacy of the sovereign state as the paramount authority in determining who controls what and why (Maaka and Fleras, 1997) but also provides the catalyst for advancing innovative patterns of belonging that reflect and reinforce the notion of a “nation” as a shared sovereignty. The emphasis in the “. . . demands for indigenous self-determination is focused . . . on establishing non-dominating relations of relative autonomy between fundamentally autonomous peoples by constructively engaging with differences in a spirit of give-and-take.”

Honourable senators, when we look at jurisdictions as a basis for sorting out state-Indigenous relations, the disengagement process that has been ongoing in Canada for many years diminishes when this process is overly defined by competitive power struggles over who gets what and who controls what, as we see now happening with Bill C-15 and the proposed action plan.

This is true whether we are considering federal, provincial, territorial or First Nations interests.

Astonishingly, industry also seems to wield massive input, contrary to the tenets of self-determination.

The adversarial relationship that has been generated with Bill C-15 only serves to reinforce the very colonialism that is allegedly being challenged. There remains no clear vision nor firm principles defined by this bill and this serves to gloss over the key elements that we need to see to confirm this is the start of a new and improved relationship, a relationship in the spirit of cooperative coexistence that would lead to forging a partnership between peoples on a government-to-government basis. This is what First Nations want.

To quote again from author Augie Fleras, he states:

Delgamuukw acknowledged the validity of Aboriginal claims to lands, together with the associated powers that have never been ceded by treaty or agreement. Such an admission confirms Aboriginal perceptions of aboriginality (indigeneity) as one of three orders of government in Canada, alongside the provincial and federal, each of which is sovereign within its own jurisdiction yet shares in the jurisdiction of Canada as a whole (RCAP, 1996).

The author continues:

Aboriginal leaders are pursuing a national political agenda that focuses on wrestling jurisdiction away from federal and provincial authorities while reaffirming Aboriginal peoples as fundamentally autonomous political communities, both sovereign of society by way of multiple yet overlapping jurisdictions.

Honourable senators, does Bill C-15 accomplish this? No, it does not. Bill C-15 is a benign arrangement that seeks to give more delegated authority and responsibility for our human rights.

I want to confirm that many Indigenous leaders have played an instrumental role in the development of UNDRIP and its adoption by the United Nations General Assembly.

As stated by the Indigenous Bar Association:

Their advancements of the recognition and respect for, and implementation and enforcement of, Indigenous rights has laid a strong foundation for Canada and the world to follow. We recognize and honor their work in bringing us to where we are today.

I too recognize and honour their work. That is why I stand here today to state that Indigenous peoples want to work in full partnership with Canada as this process advances. We don’t want words only without meaningful action, as has happened in the past. We don’t want other parties’ interests, like industry, to supersede the implementation of our human rights.

However, this bill itself, not UNDRIP, is the problem. It is still unclear to me why the language is softer and more ambiguous in Bill C-15 than is typically found in the vast majority of Canadian federal legislation. Why is this bill worded the way it is? The ambiguity is apparent and has been noted by lawyers and parliamentarians alike. Many of us see only aspirational clauses and not enough tangible and clear insight into how the implementation will actually occur.

Colleagues, what happens the day after the bill is passed? What will change to make Indigenous rights further upheld and Indigenous lives better protected? Without the explicit wording that this bill would ensure UNDRIP would have full force and effect in Canada, it remains toothless.

Through the lack of clarity and direction in this bill, we are once again left to trust the paternalistic will and prescription of the government of the day. This is something I simply cannot and will not continue to do.

Therefore, I want to state my intention to bring forward and support the amendments to this bill that have been requested by the Indigenous Bar Association. If they are not adopted at the committee stage, I will be bringing them forward for consideration at third reading. Thank you.

The Hon. the Speaker pro tempore [ + ]

Senator McCallum, will you take a question from Senator Coyle?

Senator McCallum [ + ]

Yes, I will.

Hon. Mary Coyle [ + ]

Thank you, Senator McCallum, for your remarks. This is a tough one and we’ve been through this now together twice, with the former bill and with this bill. It’s perfectly understandable why many Indigenous people distrust the federal government. You mentioned Canada’s great moral failure and we’ve looked at this in-depth and we will continue to look at this.

In our pre-study of Bill C-15, we heard testimony from some Indigenous witnesses who spoke against passing Bill C-15, others who wanted amendments considered, which you have mentioned, and others have said they just want to see this historic human rights legislation passed now without further delay. They are tired of waiting and they’re afraid that if we put forward amendments we may not have time to pass this legislation yet again. For instance, Professor Pam Palmater said: “It’s long past time that Canada took the necessary steps to implement UNDRIP into domestic law.” Then she said, rhetorically:

Will Bill C-15 help us move in the right direction? Yes, it will. . . .

Do I trust governments in Canada to interpret, implement and respect the rights? Absolutely not. We only know from history, they will fight us every step of the way. But that’s the next stage. We need the first stage to have the tool with which to defend our human rights.

Senator McCallum, given the points made by Professor Palmater and so many other witnesses who are supporting this bill and saying, “let’s get this done now,” could you tell me why you would support the possible delay and possibly not even getting this bill passed by introducing amendments? Thank you.

Senator McCallum [ + ]

I disagree with that. I have swayed with this bill back and forth. I was going to vote for it, then I was not going to vote for it. It’s my fourth time where I said okay, I need to look at what is bothering me. I delivered my speech today to once again bring the relationship that Indigenous peoples have with the Government of Canada and raise the concerns we’ve always had and that we have moved ahead despite not having UNDRIP. It’s the determination and the reclamation of power and spirit by Indigenous people that have taken our movement forward.

When I read about some of the Indigenous people who have supported the bill, I support it, but they want full involvement from the Métis Nation and the territories. They want full involvement for the development and delivery of programs for our members. There has been a lack of action by Canada and it’s troubling, and they are hopeful this accountability framework would work.

The Whapmagoostui said the same thing. They want Canada to adopt an honourable approach and address the conditions of Indigenous peoples. And we need to bring this to the table because all everyone says is we have support but almost all of them have conditions in place. They’re very trustful. They’re fearful, but they’re willing to move ahead. I will bring the amendments forward. Whether or not they are adopted, that is up to the Senate to decide. Those amendments were tabled at the House of Commons and not considered.

I have looked at those amendments, I have met with the Indigenous Bar Association and we’re going to meet with them again. At this point, placing this question on my shoulders to say, well, if you bring these amendments forward you may stop this bill — Do you know what? I say Canada should have adopted those amendments so that they do not place me in this position and I have to speak up.

The Hon. the Speaker pro tempore [ + ]

Senator McCallum, I’m sorry, I have to interrupt but your time has expired.

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