United Nations Declaration on the Rights of Indigenous Peoples Bill
Second Reading--Debate Continued
March 19, 2019
Honourable colleagues, as we meet here on the traditional unceded, unsurrendered territory of the Algonquin Anishinabeg, I rise today to join the growing chorus of honourable senators declaring support for Bill C-262, an Act to ensure the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.
This bill is of pivotal importance. I am grateful to the myriad voices of those who have contacted us as well as those who have spoken to this bill. I wholeheartedly support that this bill be now referred to committee for study, but I encourage more of you to add your voices to this debate, perhaps following the committee study, when the bill returns to us at third reading.
Honourable senators, the UN declaration has been 10 times reaffirmed by consensus at the United Nations General Assembly. Furthermore, this bill is endorsed by a diverse and growing number of supporters here in Canada. There is a great deal of support for the bill among Indigenous groups and civil society, as well as among members of the general public.
Debate in this chamber on Bill C-262 has made clear certain areas of concern to some. The matter of free, prior and informed consent, in particular, is of consequence to some honourable colleagues. I believe this is all the more reason to send the bill to committee without delay, so that we can hear from legal experts regarding these concerns.
Honourable senators, we know that the Canadian government has expressed its support for the UN declaration, yet there is still no legislative framework for its implementation and timely review. Bill C-262 provides both.
Implementing the UN declaration is of vital importance as a recognition of the inherent right of Indigenous peoples to their cultures, identities, spiritual beliefs, languages, health, education and their communities. It is also an important step toward reconciliation with Indigenous peoples for a country that has too often sought to deny these rights.
The UN declaration has particular significance for Indigenous women. In addition to Article 2, which reaffirms the right of Indigenous peoples to be free from any kind of discrimination, Article 44 specifically guarantees equal rights to Indigenous women and men, and Article 22.2 provides that states, in conjunction with Indigenous peoples, will ensure that “indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.”
During our consideration of Bill S-3 and Senator Dyck’s motion last month, we discussed how racist and colonial policies have pursued assimilation of Indigenous peoples, particularly by marginalizing and denigrating Indigenous women and children. Throughout Canada’s history, these policies have included residential schools, ongoing child welfare practices that remove Indigenous children from their families, forced sterilizations, and sex-based discrimination against women and their descendants under the Indian Act.
We heard that women who lost “Indian Act status” after “marrying out” also lost their place in their families and communities, a fundamental part of their identities, which contributed to the denigration of future generations. Recently, both the UN Committee on the Elimination of Discrimination Against Women and the Inter-American Commission on Human Rights have identified sex discrimination in the Indian Act as one of the root causes of high levels of violence against Indigenous women in Canada, including the crisis of missing and murdered Indigenous women and girls.
This same marginalization has too often resulted in criminalization of women attempting to negotiate poverty or past experiences of violence or abuse.
Together, honourable colleagues, we moved amendments to Bill S-3 that sought to end this sex-based discrimination in the Indian Act once and for all, amendments that we are still waiting for the government to bring into force.
On January 14, the UN Human Rights Committee ruled that Canada’s failure to bring these provisions into force violates its international human rights obligations and discriminates against Indigenous women and their descendants. In response to this decision, honourable colleagues, last month, we unanimously supported Senator Dyck’s motion to again call on the government to bring all of Bill S-3 into force.
As Senator Harder noted in his speech on this bill, the Senate’s work to remove sex-based discrimination from the Indian Act through Bill S-3 is closely linked to the goals of the UN declaration. Article 44 of the UN declaration specifically ensures equality between Indigenous men and women. Full implementation of Bill S-3 is necessary to realize adherence to the UN declaration.
Bill C-262 represents not only a way to follow through on our goal of bringing Bill S-3 fully into force, it will also allow us to build on a host of broader work that this chamber has undertaken in support of equality and justice for Indigenous peoples. Honourable colleagues, let us once again work together to ensure that Bill C-262 makes the promise of implementing the UN declaration a reality.
Thank you.
Honourable senators, today, I also rise in support of Bill C-262, which confirms the implementation of the United Nations Declaration on the Rights of Indigenous Peoples into Canadian law, with thanks to its sponsor, Senator Sinclair.
The implementation of the declaration sends an important message both nationally and internationally. Internationally, that message is important because it shows the entire world that Canada is serious about meeting its obligations regarding the rights of Indigenous peoples. In fact, on multiple occasions at the UN, the Prime Minister and Minister Bennett promised the entire world that Canada was fully committed to implementing the declaration. What’s more, the UN General Assembly has reaffirmed its support for this declaration 10 times.
Nationally, the implementation of the Declaration is an integral step towards reconciliation. Calls to Action 43 and 44 from the Truth and Reconciliation Commission outline that the full adoption and implementation of UNDRIP is necessary for a framework of reconciliation.
The implementation of UNDRIP will strengthen Indigenous rights within this framework of reconciliation and will ensure that Indigenous rights are affirmed and not only recognized. Too often, words of rights recognition do not ensure that those rights can actually be lived.
This bill not only demonstrates Parliament’s commitment to reconciliation; it also provides Canadians, and in particular, Indigenous Canadians, with a new mechanism to hold governments accountable. As we saw in the UN Human Rights Committee’s recent findings against Canada on sex discrimination in the Indian Act, international human rights mechanisms have been successfully used to hold the Canadian government accountable for promises made but not yet kept.
Human rights are integral to the modern rule of law. Canada has a long history of being a global leader in human rights. However, Canada has a longer history of violence, racism and sexism towards the Indigenous peoples of this country entrenched in what I call the colonial rule of law. Implementation of the Declaration presents an opportunity for us to finally reconcile these two realities.
Of course, reconciling these two realities will not be without challenge. However, as stated by the Native Women’s Association of Canada:
That these processes will at times be painful, adversarial and expensive is no excuse to shy away from the demands of justice and human rights.
We must be prepared to adopt a new, inclusive, and equality-based approach to Parliament’s relationship with Indigenous peoples. This means that we must put an end to the paternalism that shapes our relationship with Indigenous peoples and we must work with Indigenous peoples as partners.
In working with Indigenous peoples as partners, we must recognize that Canadian laws — including treaties, tripartite agreements and section 35 of the Constitution Act, 1982 — have been developed within the context of colonialism. Though, in the 2014 Tsilhqot’in Nation versus British Columbia decision, the court stated that:
The Charter forms Part I of the Constitution Act, 1982, and the guarantee of Aboriginal rights forms Part II. Parts I and II are sister provisions, both operating to limit governmental powers, whether federal or provincial. Part II Aboriginal rights, like Part I Charter rights, are held against government — they operate to prohibit certain types of regulation which governments would otherwise impose.
Since 1982, the Charter has ushered in a new understanding of what it means for Canadians to live their rights. Yet this has not been the reality for Indigenous Canadians, whose Charter rights have not always been in harmony with their constitutional rights as Aboriginal peoples. We have seen this particularly as mentioned in detail by Senator Pate for Indigenous women in this country.
With the implementation of the Declaration, Indigenous peoples will finally enjoy both their Charter rights as Canadians, and their constitutional Aboriginal rights as Indigenous peoples.
I would like to address the concern regarding a veto by way of free, prior and informed consent. In a resolution on the rights of Indigenous peoples adopted by the UN General Assembly in December 2018, a short while ago, the importance of free, prior and informed consent, as outlined in the United Nations declaration, is recognized. However, to date, no UN treaty body has discussed a veto in the context of free, prior and informed consent.
Honourable senators, implementing the Declaration on the Rights of Indigenous Peoples is about justice long denied. It is the just action for the thousands of Indigenous children in foster care. It is the just action for the Indigenous youth who are struggling with their mental health. It is the just action for the seven youths we lost from Thunder Bay, as referenced in the report by Senator Sinclair on the current situation there. It is the just action to do for the thousands of missing and murdered Indigenous women and girls in this country.
Above all, this bill is about human rights and justice. As member of Parliament Romeo Saganash, the principal drafter and sponsor of this bill, stated in the House of Commons:
I want to remind my fellow members that with Bill C-262, we are not creating new law or new rights. Those rights are fundamental and they exist. They are inherent. They exist because we exist as indigenous people.
As a lawyer, a parliamentarian and an Indigenous ally, I acknowledge that we have a lot of work to do in order to make things right and to make good on justice for Indigenous Canadians. However, we must never lose sight of the fact that the implementation of the Declaration is not calling us to go above and beyond. It simply calls for us to finally do the right thing, the just action, by according Indigenous peoples of Canada with the respect, honour and dignity they deserve, which settlers, including my ancestors, have chosen to deny them for decades and decades and decades.
Thank you, meegwetch.
Honourable senators, I rise today to speak to second reading of Bill C-262, a piece of legislation which would work to ensure that Canada’s laws are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples. While this bill is necessary in our current climate and reality, the question we must reflect upon is that with the UN proclaiming the Universal Declaration of Human Rights in 1948, what has happened to the condition of an entire subset of Canada’s — and the world’s — population that we face the necessity of requiring a second such declaration?
Colleagues, according to the Canadian Human Rights Commission, human rights are protected by federal, provincial and territorial laws. Countries have human rights to ensure individual and governmental accountability if human rights are not respected. Canada’s human rights laws stem from the aforementioned 1948 Universal Declaration of Human Rights, which provides a list of 30 articles outlining every Canadian’s universal human rights. You do not have to earn your human rights; you are born with them. They are the same for every person — no one can give them to you — but human rights can be taken away, and they were in Canada. How do I reconcile my history, in which I and other Indigenous peoples have been cheated, dehumanized and constrained by law? How can I obtain the basic human rights taken from me in my own country?
Honourable senators, the 1982 Canadian Charter of Rights and Freedoms is part of Canada’s Constitution and protects every Canadian’s right to be treated equally under the law. Yet it took two years and the raising of concerns before an international audience, including the United Nations and the British Parliament, before the Canadian government finally agreed to include Aboriginal rights in the Constitution. This constitutional allowance means that the government cannot override Aboriginal rights, which have a human rights component.
Section 35 under the Constitution Act recognizes Aboriginal rights but did not create them. Aboriginal rights existed before section 35; yet, the lack of a definition of these rights ensures that the only recourse for asserting them would be a dependency on litigation. Litigation is not the path to reconciliation.
Meanwhile, there has been so much effort and resources put toward trying to assimilate First Nations. The 1857 Gradual Civilization Act tried to do away with the tribal system. The 1869 Gradual Enfranchisement Act gave control over status Indians, marking the beginning of gender-based restrictions to status. These two acts were combined under one — the 1867 Indian Act. The 1969 white paper was another attempt at assimilation and genocide. Again, it took two years, with an international audience, before it was agreed to include Aboriginal rights in the Constitution.
Honourable senators, human rights abuses did not end when the Universal Declaration of Human Rights was adopted in 1948, although progress has been made internationally. Greater freedoms have been gained; violations have been prevented; independence and autonomy have been attained. Many people have been able to secure fair access to education, economic opportunities, adequate resources and health care. They have obtained justice for wrongs and national and international protection for their rights through the strong architecture of the international human rights legal system. Yet, in Canada, Indigenous peoples are still struggling to get out of oppression, secure economic opportunities in their own territories, and obtain self-determination.
Canada is a unique country. It is the only country in the world that has an Indian Act. The Indian Act was established in 1876 as a way to control most aspects of Aboriginal life: Indian status; land; resources; wills; education; band administration; a reserve system, which are virtual open-air prisons; and a pass system started in 1885 lasting 60 years, which was a form of segregation known by government officials to be contrary to treaties. The Indian Act banned them from expressing their identities through culture and governance. It also banned the use of spiritual ceremonies. Under this act, the government made Indians wards of the state, meaning Indians of all ages were treated as children. The 11 numbered treaties were negotiated between 1871 and 1921. In effect, the Indian Act was drafted to counteract the majority of treaties before they were even negotiated. How can a liberal democracy legislate away the human rights and the right of consent from an entire targeted population group?
Colleagues, when the Human Rights Act was passed in 1977, section 67 prohibited First Nations people from filing an official complaint that the Indian Act was a human rights violation. This was later described as a “serious disregard for human rights.” The Indian Act itself was exempted from Canada’s own human rights law, which inherently implicates the Canadian government to be complacent in a serious human rights violation.
In May 2008, the House of Commons unanimously passed Bill C-21 to repeal this section of the Canadian Human Rights Act.
Honourable senators, people often speak about the rule of law in Canada, but for Indigenous peoples there has never been fair application. There has been no separation of powers between law and politics as most of our problems as Indigenous people continue to be politically driven. According to the UN, rule of law is consistent with human rights norms and standards. Did Canada simply set aside the rule of law when it came to Indigenous peoples?
In his book The Mobilization of Shame, Father Robert Drinan, a Jesuit, writes at page 4 that Article 55:
. . . asserts that the United Nations desires to create “conditions of civility and well being which are essential for peaceful and friendly relations among nations.” . . . it is based, the charter reads, on the “principle of equal rights and self-determination of peoples.”
He goes on to say:
It is in essence a pledge by the rich nations to create an economic system which would bring “conditions of civility and well being” to all countries.
In Canada, First Nations have long been seeking economic conditions of stability but made very little progress despite section 35. First Nations have been frustrated in gaining economic rights due to jurisdictional issues and legislation which I believe would be viewed as consistent with the principles of capitalism and not stewardship. In Canada, the lasting impression is that although world law guaranteed political legal rights such as life, security and liberty, economic rights, on the other hand, such as entitlement to a living wage and health benefits, were on a different tier.
In her book Oppression: A social determinant of health, Elizabeth McGibbon states, on page 33:
The concept of vulnerability worked well when it first came into common usage because it allowed us to name the people who are most oppressed and thereby attempt to influence public policy in the direction of justice. However, the term is not ultimately effective in ameliorating the physical, spiritual and psychological suffering caused by injustice because it reinforces the idea of a nebulous force that is somehow causing ill health. Rather, it is time to change our thinking to explicitly identify the threats that are causing ill health: colonization, re-colonization, post-colonialism neoliberal economic policy and corporatization of health care delivery, to name a few.
In 1845, Friedrich Engels described the phenomena of social murder which still rings true in this country today. He says:
When one individual inflicts bodily injury upon another such that death results, we call the deed manslaughter; when the assailant knew in advance that the injury would be fatal, we call his deed murder. But when society places hundreds of proletarians in such a position that they inevitably meet a too early and an unnatural death, one which is quite as much a death by violence as that by the sword or bullet; when it deprives thousands of the necessaries of life, places them under conditions in which they cannot live – forces them, through the strong arm of the law, to remain in such conditions until that death ensues —
I’m sorry, senator, but I have to interrupt you.
It being six o’clock, honourable senators, pursuant to rule 3-3(1), I am required to leave the chair unless it is agreed that we do not see the clock. It is agreed, senators, that we not see the clock?
I hear a “no.” Therefore, honourable senators, the sitting is suspended until 8 p.m.
Bill C-262 for the balance of your time, Senator McCallum.
Thank you, Your Honour.
. . . knows that these thousands of victims must perish, and yet permits these conditions to remain, its deed is murder just as surely as the deed of the single individual; disguised, malicious murder, murder against which none can defend himself, which does not seem what it is, because no man sees the murderer, because the death of the victim seems a natural one, since the offence is more one of omission than of commission. But murder it remains.
Honourable senators, structural violence is defined by Johan Galtung as “. . . any constraint on human potential caused by economic and political structures.”
Structural violence is evident in unequal accesses to resources, political power, education, health care and legal standing. Structural violence also occurs when the devastation of resource extraction is not acknowledged or addressed, allowing toxic materials to continue to cause a decreased quality of life and/or early deaths in First Nations because of their proximity to these toxic materials, and the devastation to land, water, air and animals.
In the preamble of the Declaration of Human Rights it states:
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
The paradox is how can Indigenous peoples be protected by a rule of law which is what oppressed them in the first place?
Honourable senators, I ask for your support in the passage of Bill C-262, not only because it is the moral and right thing to do, but because we, the Indigenous peoples, have the right to live lives that other Canadians and new citizens have the luxury of taking for granted. Consent and self-determination are common threads that bind the majority of human rights. Yet these have long been the basic rights denied to Indigenous peoples. Bill C-262 will be a first step toward ensuring that we equally protect the basic human rights of all Canadians. It is time for Canada to see past the difficulty of these circumstances and continue on our road to reconciliation. Thank you.
Honourable senators, I rise today to speak to Bill C-262 passed by the other place on May 30, 2018, entitled An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples.
I would like to point out that this bill was initiated by MP Romeo Saganash. It is also worth noting that his initiative represents just one of many actions that Indigenous peoples have taken to have their rights recognized over the course of our nation’s history, both within Canada and on the international stage.
I would remind the chamber of just two examples from our recent past that illustrate the context of the bill, and as a reminder that the issue of Indigenous peoples’ rights has been addressed as part of evolving discussions that have led to international recognition of peoples’ rights.
The first example is Jules Sioui, a Huron-Wendat from Wendake, an Indian reserve near Quebec City, who created the committee for the protection of Indian rights in the 20th century. The main purpose of this committee was to have their right to self-government recognized. This committee can be considered the ancestor of Canada’s current Assembly of First Nations. Jules Sioui also invited Canada’s First Nations chiefs to gather in Ottawa on October 19, 1943, where they met with federal officials to discuss their rights. In 1945, he founded the North American Indian Nation Government in collaboration with 33 delegates from all regions of Canada. Among them was William Commanda, an Algonquin chief from the Kitigàn Zibi Anishinabeg First Nation, the first elected Supreme Chief.
The second example is the Inuit and Atikamekw First Nations of Quebec. In November 1980, the fourth session of the Russell Tribunal on the rights of the Indians of the Americas was held in Rotterdam, in the Netherlands. At that session, the tribunal heard 14 cases, including two filed by Canada’s First Nations. The first was put forward by the Grand Council Treaty No. 9 of Ontario, and the second was submitted by me on behalf of Quebec’s Attikamek-Montagnais Council.
The tribunal first heard testimony from two elders, namely former Innu chief Mathieu André from Matimekush-Schefferville First Nation in northeastern Quebec, and former Atikamekw chief Jacquot Chachai from Opitciwan First Nation in northwestern Quebec. It then heard testimony from the Attikamek-Montagnais Council, which represented three Atikamekw First Nations and six Innu-Montagnais First Nations.
The tribunal concluded that a 1977 federal law that unilaterally extinguished First Nations rights in the James Bay territory of Quebec without compensation was a violation of these First Nations’ territorial rights and did not comply with Canada’s international obligations.
The Russell Tribunal clearly set out the violations of the territorial rights of the Indians of the Americas under international law, which, at the time, had not settled the issue of the status of indigenous peoples in instruments of international law. That is what the United Nations Declaration on the Rights of Indigenous Peoples sought to clarify.
This declaration is the result of intense international negotiations that began with the work started in 1982 by a UN working group created by the Sub-Commission on Prevention of Discrimination and Protection of Minorities and chaired by legal expert Erica Daes. The mandate of this working group was to identify ways to recognize the rights of Indigenous peoples around the world. It was in this context that Indigenous peoples were formally invited to participate in the international discussions about their rights. The Innu-Montagnais and Atikamekw chiefs had the opportunity to present their positions on the recognition of their rights to the chair during one of her visits to Canada in 1985.
During all these years, Canada was very engaged in the discussions, tough debates and intense negotiations that led to the adoption of the declaration in 2007.
For example, many vigorous debates took place after that initial discussion about the rights of Indigenous peoples and before the text of the United Nations Declaration on the Rights of Indigenous Peoples was finalized. The states, including Canada, were acutely aware of the radically different legal implications of the two concepts. The Government of Canada voted with the United States, Australia and New Zealand against adopting the declaration on September 13, 2007, at the UN General Assembly.
Three years later, on November 12, 2010, the federal government decided to release a statement of support on the declaration, which explicitly stated that the declaration is “non-legally binding”. The federal government finally withdrew that qualification in 2016. On May 10, 2016, the Minister of Indigenous and Northern Affairs announced to the United Nations Permanent Forum on Indigenous Issues that the federal government was a full supporter, without qualification, of the declaration. She affirmed “Canada’s commitment to adopt and implement the Declaration in accordance with the Canadian Constitution.”
In 2017, the federal government announced the 10 principles that would henceforth govern its commitment to “achieving reconciliation with Indigenous peoples through a renewed, nation-to-nation, government-to-government. . . relationship based on recognition of rights, respect, co-operation, and partnership as the foundation for transformative change.”
It is important to remember that the evolution of these international negotiations stems directly from the centuries-old struggles of Indigenous peoples to have their rights respected both within and outside Canada.
These international negotiations took place at the same time that constitutional negotiations were being held in Canada in the 1980s to patriate the Canadian Constitution, which led to the adoption of the Constitution Act, 1982. Among other things, this new legislation contained formal provisions recognizing the status of Indigenous peoples, including Indian, Inuit and Métis peoples, under section 35. Their official participation in discussions pertaining to them was also enshrined in the Constitution at the time.
Senators, the fear over a veto on natural resource and land development in Canada must not overshadow first, the violation of the rights of Indigenous peoples on their traditional lands, and second, the prohibition imposed on First Nations under the Indian Act, between 1927 and 1951, to take legal action against Canada to enforce their rights or seek compensation when those rights were violated, which constituted an offence under the Act. Third, we must not hide the fact that many outstanding claims remain unsettled. Fourth, we must consider Canada’s constitutional obligations to Indigenous peoples. Fifth, we must consider the international obligations that Canada has supported and, finally, the government’s commitment to implement the UN declaration.
We must therefore consider Bill C-262 in light of its historical context. This bill clarifies what was left unresolved during the constitutional talks of the 1980s and 1990s, which were supposed to define the scope of the special collective rights recognized and affirmed in the Constitution in 1982. Failure to achieve political consensus on this issue had the immediate effect of making the courts the arbiters of the scope and content of those rights. That has not been fixed yet.
As a result, there is a conflict between the international legal standards Canada helped define and its inability to define its own legal standards more clearly after 1982. Even though the text of the declaration does not have the force of law in Canada, it is important to understand that the courts use it to help interpret Canadian law.
Bill C-262 goes even further, in that it sets out new rules. First of all, all government laws and actions going forward should be in harmony with the content of the declaration. Second, the legislator’s intent will be clarified in terms of the interpretative framework that Canadian courts must refer to when interpreting the rights of Indigenous peoples. In other words, the due care and responsibility of defining the scope of Indigenous peoples’ rights will no longer be left entirely up to judges in Canadian courts.
Honourable colleagues, I invite members of the committee tasked with analyzing this bill to pay particular attention to three elements. Clause 3 of the bill does not mention the fact that Canada contributed to developing this declaration and supported it. It might be appropriate to consider adding this point. Second, it is important to make a distinction between the obligations created by clause 3 and clause 4, in terms of purpose and ways to achieve it. Lastly, changes are needed to designate the minister responsible for submitting the annual report to Parliament provided for in clause 6, especially given that the department has been split into two separate departments.
Honourable senators, it is up to us, as legislators, to resolve this apparent contradiction between Canada’s domestic law and the law that it helped pass internationally.
In closing, I would like to quote Rebecca Belmore, an Anishinaabe artist from the Lac Seul First Nation. This quote can be found in the catalogue of one of her recent exhibits. She said:
“For decades I have been working as the artist amongst my people calling to the past witnessing the present standing forward facing the monumental.”
Dear colleagues, for me, that describes the work that we, as members of the Senate, are being called upon to do with this bill. Thank you.
Honourable senators, I too rise today on 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. I want to acknowledge all senators who have spoken to this bill and convey my gratitude to Member of Parliament Romeo Saganash for his dedication to the rights of Canada’s Indigenous peoples through this proposed legislation. I applaud my Indigenous colleagues in this chamber for their compelling speeches, and as a non-Indigenous person, feel just as strongly as they about the need to pass this legislation. We have a responsibility to right wrongs, ensure equal rights are extended to all and to open doors to equal opportunities.
This is the seventh iteration of this legislation, the first having been introduced in the other place in 2008. Bill C-262 was first introduced on April 21, 2016, and has been before the Senate since May 31, 2018.
This bill is unique in that the document which it is based on, UNDRIP, is the result of two decades of work by Indigenous peoples from across the planet. It is the first international instrument where the rights holders themselves participated equally with states in the drafting.
We are making progress. Five hundred years since first contact we are considering Indigenous peoples as being equals. In so doing we must remember that Canada is a member of the UN and over the decades has assumed many leadership roles in the UN. It is now time that we too do the right thing and adhere to the principles enshrined in UNDRIP and affirmed by Bill C-262.
The bill, as I said, would affirm UNDRIP as a universal international human rights instrument with application in Canadian law and would call on the Government of Canada, in consultation and cooperation with Indigenous peoples in Canada, to take all measures necessary to ensure that Canada’s laws are consistent with the United Nations Declaration on Rights of Indigenous Peoples.
Further, it calls on the Government of Canada, as we’ve heard, in consultation and cooperation with Indigenous peoples to develop and implement a national action plan to achieve the UNDRIP’s objectives.
The bill also contains a yearly reporting period to both houses of Parliament on implementation. From my perspective, I think the annual reporting regarding implementation is critically important.
Why is this bill necessary? It is necessary because the Government of Canada is a signatory to UNDRIP. It is necessary because the Government of Canada accepted and promised action on the 94 Calls to Action recommended by the Truth and Reconciliation Commission.
Call to Action 43 reads:
We call upon federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.
Call to action 44 reads:
We call upon the Government of Canada to develop a national action plan, strategies, and other concrete measures to achieve the goals of the United Nations Declaration on the Rights of Indigenous Peoples.
I applaud this private member’s bill but cannot help wonder how a government espousing the 94 Calls to Action did not introduce its own legislation to adopt and implement UNDRIP as the framework for reconciliation. To my mind, that leadership would dispel doubts that may exist regarding the government’s position moving forward on reconciliation with Indigenous peoples.
Bill C-262 represents a repudiation of Canada’s colonial history and an attempt at reconciliation with all those affected. I was moved to read the words of the bill’s sponsor referring to his experience of 10 years’ incarceration in a residential school. Mr. Saganash stated:
Bill C-262 would also allow us to begin to redress the past wrongs, the past injustices that were inflicted on Indigenous people. This is the main objective of Bill C-262, to recognize that on one hand they are human rights but on the other hand that we begin to redress the past injustices that were inflicted on the first peoples of this country.
While the justices are many, those resulting from government policy are particularly abhorrent. The residential school system and the Sixties Scoop were policies particularly harmful to Indigenous people. As Senator Sinclair quoted from the Truth and Reconciliation Commission:
For over a century, the central goals of Canada’s Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada.
In my province, Manitoba, we have been reminded a number of times of the ongoing and horrific effects of these policies. One was the release of the September 2018 report of the Legislative Review Committee titled Opportunities to Improve Outcomes for Children and Youth, which examined the state of the child welfare system in Manitoba, although:
. . . the committee did not focus on children and families of any region, ethnicity or cultural background in isolation.
The results discovered were telling and the picture is anything but pretty.
Just last week, a further report on the murder of 15-year-old Tina Fontaine entitled, A Place Where it Feels Like Home: The Story of Tina Fontaine, highlighted once again the crisis of the egregious gaps in the system. The brutal loss of life of children, girls and women, the living conditions, the inattention and events and situations which fall into the wide gaps in society’s fabric are absolutely unacceptable. Bill C-262 will at least, in part, provide the foundation to turn the tables to equal and fair human rights.
The 2018 report states:
The majority of the stories and information we gathered referenced Indigenous children, youth and families. This reflects the alarming fact that in Manitoba almost 90 per cent of children in care are Indigenous. The causes are deeply rooted in a legacy of colonial practices and policies, such as the legacy of the residential school system and the 60’s Scoop. These practices separated children from parents, family, community, culture and language and have been clearly linked to high rates of substance abuse, violence and poverty within Indigenous communities, perpetuating the cycle of children being removed from their familial homes.
Can you imagine? If the tables were turned and it was non-Indigenous people who were desperate for equal rights and human justice, exactly what Bill C-262 is calling for for Indigenous peoples, how would those of us non-Indigenous citizens be feeling? We must consider humanity from all perspectives and realities.
The report echoes both UNDRIP and the Truth and Reconciliation Commission:
The delivery of child and family services in Manitoba should be guided by the Calls to Action of the Truth and Reconciliation Commission, the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples and the norms expressed in the United Nations Convention on the Rights of the Child.
Much of the discussion surrounding this bill resolves around the concept of free, prior and informed consent.
Senators, as you know I have had the privilege to work with Indigenous artists extensively over the decades of my career and always found they are ahead of the curve in expressing society’s ills and realities, and do so viscerally regarding the experiences of Indigenous peoples historically and today.
Gitxsan artist and scholar, Doreen Jensen, insightfully wrote:
Canada is an image that hasn’t emerged yet. Because this country hasn’t recognized its First Nations, its whole foundation is shaking. If Canada is to emerge as a nation with a cultural identity and purpose, we have to accept First Nations art.
Scholar and former UBC Anthropology Museum director, Ruth Phillips, wrote on Indigenous artist Jackson Beardy, a founder of the Indigenous Group of Seven in 1972, that:
For over four decades Aboriginal visual artists have been contributing in vital ways to the larger process of empowerment. As Aboriginal people repeatedly assert, their art cannot be separated from politics, for self-representation - and the representation of history that is a part of the process - is profoundly empowering. Art has been at the heart of politics just as politics have been, and remain, at the heart of Aboriginal art, whether the specific subject is historical or contemporary, ironic or lyrical, sacred or mundane.
Cree artist Jane Ash Poitras was on exactly the same wavelength as quoted in Anne Newlands’ book, Canadian Paintings, Prints and Drawings:
Only through spiritual renewal can we find out who we really are, be empowered to achieve our potential, and acquire the wisdom to eliminate the influences that bring tragedy and destroy us.
That spiritual renewal comes from human expression. Colleagues, I challenge all of us to look deeply at the work of Canada’s Indigenous artists from east to west to north and every part of the country. They tell the realities and do so giving guidelines as to how to become a society which honours UNDRIP.
I have spoken in this chamber before about Joane Cardinal-Schubert’s The Lesson, of 1989. An installation, the students’ chairs are in rows, there are apples on most of the seats and a dunce cap is on one chair at the back of the room. There are two walls of blackboards filled with writing, one titled, The Lesson, the other, The Memory Wall. The text on The Lesson wall begins:
In the beginning there were native people across the land. When new people came, they shared with them their knowledge and goods and the new people took whatever they wanted. They shared their values, their religion, their languages and their laws. Then they took, took, took and the native people were taken from.
She carries on with text about fenced areas. The Memory wall is filled with lists of injustices. She did not create a celebratory wall. We all know about those injustices, as I’ve said: the residential schools, the Sixties Scoop, multi-generations living in one house without insulation or running water or the forced move of whole communities. The list goes on.
We must end that list and reverse the situations on that list. Bill C-262 is poised to assist with those societal amends.
Jane Ash Poitras’ mixed media work Potato Peeling 101 to Ethnobotany 101 also depicts a classroom, with blackboards on two walls, the alphabets and numbers running across the top. One is filled with photographs and texts. A Hudson’s Bay blanket is along the bottom, with a Union Jack in the middle of the blanket stripes, the very blankets and flags artist Bob Boyer also poignantly used to tell Canada’s history. Now deceased, he was a long-time leader of SCANA, the Society of Canadian Artists of Native Ancestry.
The power of these works is far greater than words can convey. If even several of these were on the Hill, I honestly believe Bill C-262 would have been passed by now.
Or there’s Rebecca Belmore’s performance piece, Intertidal The Named and The Unnamed, calling murdered and missing women. I took part in a parking lot in Winnipeg’s Exchange District one fall night several years ago before the inquiry was established. All of us gathered that night had a rose and a piece of paper on which to write the name of a missing woman we knew. We tied the paper to the rose and put the rose in the mesh that was hanging from the wall of the building next to the lot. The light was from the car headlights; the music from an old portable CD player. The effect of the performance of that night resonates with me daily as I read the news headlines.
I won’t go on, but you get my point. We, as a chamber and as a Parliament, must turn reconciliation into “reconciliaction.” Passing Bill C-262 is a truly important step one. Please join me in enabling Canada to join UNDRIP. We as a nation should be leaders in action and word in human rights — not merely strong in word but weak in action. Renewing spirits is hard, complex, and at times seemingly impossible, but it will be impossible if we don’t start, and we have the road markers. As Louis Riel said in 1885: “My people will sleep for one hundred years, but when they awake, it will be the artists who give them back their spirit.”
We all should “read” the work of the artists executed in those powerful international languages of visual art, music and dance, which unite in many compelling and empowering works that are understood worldwide, and reach into the soul of the artist, the community and the nation.
I support Bill C-262 and hope it goes to committee soon, and I hope you do too. Thank you.
