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Bill to Amend the Interpretation Act and to Make Related Amendments to Other Acts

Third Reading--Debate Adjourned

December 5, 2023

Hon. Patti LaBoucane-Benson (Legislative Deputy to the Government Representative in the Senate)

Moved third reading of Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts.

She said: Honourable senators, I am pleased to begin third reading of Bill S-13, which represents a significant step forward in the process of reconciliation.

This bill would add a provision to the Interpretation Act affirming that all federal laws must be read as upholding, and not as abrogating or derogating from, the rights of Indigenous peoples under section 35 of the Constitution. With a few exceptions, the new provision would replace all similar clauses in existing laws so that there will be a consistency in legislative interpretation and so that Indigenous people won’t have to push for non-derogation clauses in legislation on an ad hoc basis.

This is something that many Indigenous organizations and rights holders have wanted for a very long time. It is a product of many years of advocacy and hard work, and it is exciting to finally be so close to making it a reality.

I will start by thanking the members of the Standing Senate Committee on Legal and Constitutional Affairs, as well as the witnesses who contributed testimony and written briefs, for a thorough and truly interesting study.

As I said at clause-by-clause consideration, I wish some of the Indigenous leaders who have passed could have been there to witness the level and nature of the discussion. Frankly, I wish some of our predecessors in this institution could have seen it too.

In living memory, there were debates in the Senate explicitly about how best to use the laws of Canada to sideline or eliminate Indigenous nations and cultures. A few weeks ago at clause by clause, the focus of our discussion was how far and how fast we could go to ensure Canadian laws protect Indigenous rights.

The committee grappled thoughtfully with questions such as what genuine consultation means and how we, as senators, can drive progress while remaining respectful of the role of Indigenous peoples in setting the agenda and the pace of change. These are not simple questions to answer, but they are good questions to be asking.

Ultimately, the committee decided to adopt the bill unamended, in keeping with the recommendations of most but not all witnesses. In general, there was widespread agreement that Bill S-13 is significant and overdue.

Natan Obed, President of Inuit Tapiriit Kanatami, or ITK, called this “. . . a long-standing priority for Inuit” and gave this bill his unqualified support. President Cassidy Caron of the Métis National Council, or MNC, said that Bill S-13 is:

. . . part of Canada’s commitment to building renewed nation-to-nation and government-to-government relationships with the Métis Nation based on an affirmation of rights.

Speaking on behalf of the Manitoba Métis Federation, or MMF, William Goodon said:

. . . we unequivocally support the quick passage of Bill S-13. We commend the Government of Canada for finally proceeding with this long overdue and Indigenous-led initiative. . . .

Eva Clayton, President of the Nisga’a Lisims Government in B.C., said:

We are very excited at the prospect of Bill S-13 finally becoming law. The bill has the unequivocal support of the Nisga’a Nation, and we congratulate the government for finally agreeing to proceed with what has been, since the beginning, an Indigenous-led initiative. . . .

That is just a sampling, colleagues. There was also support for the bill from the Tłı̨chǫ Government and Gwich’in Tribal Council in the Northwest Territories; Nunavut Tunngavik Incorporated, or NTI; the Grand Council of the Crees (Eeyou Istchee) and Cree Nation Government; and the Champagne and Aishihik First Nations in the Yukon.

Many briefs and witness statements mentioned the report issued by the Legal and Constitutional Affairs Committee back in 2007 which called for legislation like Bill S-13. Witnesses generally expressed disappointment that it has taken 16 years for that report to turn into a bill, but there was also considerable enthusiasm for the prospect of finally turning it into law.

Colleagues, this legislation has been a long time coming, and it enjoys broad support among Indigenous peoples. I am looking forward to sending it to the other place as soon as possible, and I hope the study that happens there will be as thoughtful and expeditious as ours has been.

Before I wrap up, there are two main concerns about this bill that were raised at committee. Neither should stop us from passing it, but they are both valid and deserve to be addressed.

First, we heard differing accounts about the quality of the government’s consultations. For example, the Manitoba Métis Federation said:

We have been consulted and engaged with in respect to the current wording, and we advised the government of our agreement . . . .

Eva Clayton of the Nisga’a Lisims Government said the Department of Justice has conducted “. . . a very lengthy process of consultation and engagement . . . .”

The Grand Council of the Crees (Eeyou Istchee) shared with us the written exchange they had with former Minister Lametti back in 2021 in which they expressed their support for the legislative measures contained in Bill S-13. This aligns with the government’s What We Heard report issued this past June, which describes a multi-year consultation process about the specifics of the bill, such as exactly what wording to use and how to deal with existing non-derogation clauses in other acts.

However, colleagues, the Assembly of First Nations, or AFN, as well as ITK and MNC all expressed dissatisfaction with the extent and quality of consultations. MNC President Cassidy Caron described a process that relied too heavily on the solicitation of written input at the expense of conversation with ministers and officials.

According to ITK President Natan Obed, “The legislation was neither co-developed with Inuit nor was it subjected to any consultation and cooperation with Inuit . . . .”

Cheryl Casimer of the AFN said that the First Nations had not given their “free, prior and informed consent,” which is the standard set by the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP.

It was a pretty striking illustration of differences in understanding about what consultation means, what level of consultation is required and what the distinctions are between soliciting input, consulting and co-developing a bill.

Honestly, I got the sense that government officials were genuinely surprised by the criticism of a consultation process they seemed to think had been quite strong, and I came away feeling that the government and Indigenous organizations could really benefit from a more in-depth discussion about what consultation should consist of. Hopefully, that is something that will happen as a part of the ongoing action plan to implement UNDRIP, and it is probably an area where the Senate could make useful contributions.

To be clear, though, most of the witnesses who criticized the consultation process still supported Bill S-13 and wanted it adopted as soon as possible.

One substantive critique we heard was that the bill doesn’t go far enough. While Bill S-13 adds provisions to the Interpretation Act to protect the rights of Indigenous peoples under section 35 of the Constitution, some witnesses wanted an additional provision to clarify that all laws of Canada should be construed as being consistent with UNDRIP. This was notably the position of the Indigenous Bar Association, the Native Women’s Association of Canada and the AFN.

Much of the discussion at committee focused on this point. And there was a proposal from Senator Prosper to make this addition to the bill.

By the way, when I said earlier that we grappled with serious questions at committee, a lot of that grappling happened during the debate on Senator Prosper’s amendment, so I really do thank him for making a proposal that sparked such a valuable conversation.

As I said during that conversation, I am, of course, a big proponent of the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP. I sponsored the United Nations Declaration on the Rights of Indigenous Peoples Act — former Bill C-15 — and I definitely want Canadian laws and policies to comply with it. The difficulty in this instance is that most of the Indigenous organizations who testified were not prepared to support the addition of UNDRIP to this bill at this point.

We heard repeatedly from Inuit Tapiriit Kanatami, the Métis National Council, the Manitoba Métis Federation, Nunavut Tunngavik Incorporated, the Nisga’a Lisims Government and the Tłįcho Government that they want time to analyze this idea. They want to study the different possible ways of drafting a provision, settle on precise language and be sure to understand its broader implications. Several of them said that they would also need to do internal consultations to obtain a mandate to support an UNDRIP addition.

All of this is doable, and these are good ideas. I understand the frustration of some witnesses and senators who want to seize the moment and make this addition now. Ultimately, though, the determining factor for me was that if we value consultation — and if we want Indigenous people to be on board with major legislative changes that affect them — I think we, as senators, should do our best to listen when so many Indigenous leaders ask us to wait until they and the people whom they represent are ready.

In the meantime, the message from most witnesses came through loud and clear: Bill S-13 will be a significant step forward and should be adopted without delay. As we heard from Marie Belleau, Managing Legal Counsel for Nunavut Tunngavik Incorporated, it is “. . . the product of years of wordsmithing. . . .” And it’s the product of advocacy that goes back decades. It also builds on the work of the Senate, including the 2007 committee study and an earlier version of this bill sponsored by former senator Charlie Watt. It is exciting to be finally turning all those years of hard work into law.

I hope we adopt this bill as soon as possible, and I hope our colleagues in the other place do the same.

Thank you. Hiy hiy.

Hon. Paul J. Prosper [ + ]

Honourable senators, I rise to speak in the chamber for the first time —

Senator D. Patterson [ + ]


Senator Prosper [ + ]

I rise to speak on Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts.

As this is my maiden speech, I will also share three stories related to the purpose of the bill, both in existing form and, more importantly, on how it can be improved.

My first story begins with a quote from the letter of a Mi’kmaw elder. It provides:

I cannot cross the Great Lake to talk to you, for my Canoe is too small, and I am old and weak. I cannot look upon you, for my eyes do not see so far. You cannot hear my voice across the Great Waters. I therefore send this Waumpum and Paper talk to tell the Queen I am in trouble. My people are in trouble.

I have seen upwards of a thousand Moons. When I was young I had plenty, now I am old, poor and sickly too. My people are poor. No Hunting Grounds, No Beaver, No Otter, No Nothing. Indians poor, poor forever, No Store, No Chest, No Clothes. All these woods once ours. Our Fathers possessed them all. Now we cannot cut a Tree to warm our Wigwam in winter unless the White Man please.

. . . we look to you the Queen. The White Waumpum tell that we hope in you. Pity your poor Indians in Nova Scotia!

Those words of Grand Chief Pemmeenauweet — also known as Louis-Benjamin Peminuit Paul, who was a Nova Scotia Mi’kmaw — in a petition to Queen Victoria in 1841, set out in dramatic and poetic fashion the background to the defence put forward in this case.

Honourable senators, these are the first two opening paragraphs of the Marshall logging decision. I was co-counsel in that case. I still remember the faces of those present when the judge read his decision on March 8, 2001. The existence and fate of a people — of a nation — was deliberated through a decision consisting of 36 pages and 144 paragraphs. At that time, I felt that the history and future of the Mi’kmaq rested in my hands, and I let them down.

I still carry this memory with me — not as a weight, but as an impetus to do more, because our people deserve more.

Bill S-13 unamended will help improve the interpretation of law as it relates to existing Aboriginal and treaty rights recognized and affirmed through section 35 of the Constitution Act, 1982. It does so by adding a non-derogation clause, or NDC, in the Interpretation Act. This NDC provides that all federal enactments are to be interpreted to uphold and not diminish the section 35 rights of Indigenous peoples.

It would render unnecessary NDCs in federal laws going forward, and it will remove NDCs, with limited exceptions, in existing federal legislation.

I want to recognize Senator Jaffer’s advocacy in the history of this bill.

In committee, testimony from many witnesses centred on the inclusion of the United Nations Declaration on the Rights of Indigenous Peoples Act in Bill S-13. Section 4 of the United Nations Declaration on the Rights of Indigenous Peoples Act affirms the declaration, as an international human rights instrument, has application in Canadian law, and that the United Nations Declaration on the Rights of Indigenous Peoples Act acts as an implementation framework for the federal government.

Section 5 of the United Nations Declaration on the Rights of Indigenous Peoples Act provides:

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.

Section 2 of the United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan titled “Shared priorities” proposes to:

Identify and prioritize existing federal statutes for review and possible amendment, including:

A non-derogation clause in the Interpretation Act . . . .

— and the inclusion of an interpretive provision to use the declaration to interpret federal enactments.

What does this all mean in practice if the United Nations Declaration on the Rights of Indigenous Peoples Act is included in Bill S-13?

In answer, Professor Naiomi Metallic provides the following:

If you have two potential interpretations of a law that are either inconsistent or one is more consistent with section 35 and one is not, or one is more consistent with the UN declaration and one is not, then you choose the interpretation that is most consistent with those instruments.

It is important to note that the inclusion of the United Nations Declaration on the Rights of Indigenous Peoples Act in Bill S-13 is about the interpretation of law, and not about the creation of law.

Witness testimony was split on the support for this amendment. Generally, reasons against the amendment cited the lack of consultation and the fear that further consultation on the United Nations Declaration on the Rights of Indigenous Peoples Act may unnecessarily delay and prevent Bill S-13 from being passed.

These were largely matters of process and did not offer substantive comment toward the text of the amendment.

Reasons for the amendment cite the need for greater clarity when developing and applying laws to Indigenous peoples; that previous consultations on Bill C-15 and the Action Plan with Indigenous peoples were substantial and must be taken into account; that the United Nations Declaration on the Rights of Indigenous Peoples Act, or UNDA, and its Action Plan speak to an alignment of federal law with the declaration, including it as an interpretive provision to all other federal enactments as an NDC, in the Interpretation Act; and that consultation should not get in the way of what is obvious, legally just and reasonable.

I recall Senator Arnot’s speech in this chamber that focused on the honour of the Crown. I draw many parallels on governments’ reliance on the need for further consultation in this regard.

My second story relates to two court cases that involve my community, Paqtnkek Mi’kmaw Nation. In March 1990, Tom Sylliboy, a Paqtnkek community member, was acquitted, along with two other Mi’kmaq in R. v. Denny et al., a Nova Scotia Court of Appeal decision. Two months later, Denny was substantially relied upon in R. v. Sparrow, a decision of the Supreme Court of Canada.

In August 1993, Donald Marshall Jr. was charged for fishing and selling eels in Pomquet Harbour, Nova Scotia. He was charged on Paqtnkek reserve lands at a place we call “Walneg,” which means “the cove” in Mi’kmaq. Donald Marshall was later acquitted by the Supreme Court of Canada on September 17, 1999.

Following both the Sparrow and Marshall decisions, the government entered into negotiated fishing agreements with many Mi’kmaq and Indigenous communities. In both instances, Paqtnkek refused to sign Sparrow and Marshall agreements, given the lack of a government mandate.

Since 1990, federal negotiators adhered to strict cabinet mandates and instructions that they undertake negotiations without recognition. This approach is quite simple. They come to the negotiating table with a template agreement. They say they don’t have any mandate or authority to talk about section 35 rights, but, “Here is some money and fishery access that we want to discuss and provide to your community.”

As previously stated by the then minister of justice David Lametti, UNDA will help breathe life into section 35 rights.

Cheryl Casimer of the Assembly of First Nations provided that:

 . . . the proposed language in Bill S-13 does not meet the standards of the UNDRIP. For this reason, we view Bill S-13 as being deficient. . . .

Sara Niman of the Native Women’s Association of Canada stated that:

. . . Lack of consultation is not an accurate explanation as to why UNDRIP is not included in the proposed NDC.

Naiomi Metallic mentioned that:

. . . Section 35 takes life from the UN declaration, and it’s really important, for us to move forward on reconciliation, to see them as operating together.

She adds that:

By stating clearly in the Interpretation Act that federal laws and regulations must be interpreted in conformity with both section 35 and the UN declaration, Canada can truly achieve what it has already promised. . . .

Laurie Sargent, Assistant Deputy Minister at the Department of Justice Canada, provided that parallel discussions took place between the NDC and the UNDA Action Plan throughout 2021-23 and that her department was aware of the request to include UNDA in the Interpretation Act, however, they did not present any specific wording to First Nations representatives. Ms. Sargent’s testimony seemed to largely place the onus on Indigenous groups to raise it in their discussions rather than bringing it forward as a topic for discussion.

Ms. Metallic provides:

The UN declaration should be sufficient on its own to achieve this, just as section 35 of the Constitution Act should be sufficient to ensure respect of Aboriginal and treaty rights. However, the pervasiveness of systemic denial of Indigenous peoples’ rights requires more. Please do more.

Colleagues, I would like to share my third story to honour you. We are all part of this great mystery called “life.” When our people begin to pray, we start by saying:

Niskum, Gisult, Great Spirit, thank you for this day, this life, this breath. Thank you for the many things you have given us.

When we end our prayer, we say “Umsit-nogomah,” which means “all my relations.” It recognizes our relationship to the energy we share with all living things. Your relationship to the energy around you is what we call “spirit.”

Colleagues, I would like to conclude by offering you a blessing to mark the spirit of the season. This blessing comes from a vision I received over several years. Colleagues, I ask you to relax, to close your eyes and imagine you are seated around a great council fire. Across from you is an elder. She has dark eyes. She looks at you and says, “You are a spark that comes from a great source, and you carry that light within you. You carry it within your heart. You carry it with your thoughts, your words and your actions.”

She then pauses and says to you, “Shine your light.”

Wela’lioq. Thank you very much.

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