First, I would like to thank Senator Dalphond and Senator Duncan for their support. I would like to thank Senator Plett for his apology. I do understand the rules, and I do understand that there needs to be change, and that change will come. Thank you.

The first area is to amend both the title and preamble of the bill to include the word “implementation.” These proposals are intended to put an emphasis and bring clarity to the goal of implementing UNDRIP outright. Even if the bill does not result in the immediate implementation of UNDRIP, the objective of the bill is ostensibly to produce a result whereby UNDRIP is implemented in Canadian law. This portion of the amendment clearly establishes this goal.

The current language used in the preamble — “to achieve the objectives of UNDRIP” — has no binding effect requiring the government to implement the articles of UNDRIP. Incorporating the word “implement” requires that the declaration’s articles are given legal force and effect.

According to Minister Lametti, this bill, “recognizes that international human rights instruments, such as the declaration, can be used as tools to interpret Canadian law.” Such purpose, then, should be adequately reflected in both the title and preamble.

The second part of my amendment is to add a provision that indicates that this act is binding on Her Majesty in right of Canada. Simply put, the Crown must be held to the words and standards it enshrines in law. As per section 17 of the Interpretation Act:

No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights or prerogatives in any manner, except as mentioned or referred to in the enactment.

While arguments can be made that Bill C-15 would implicitly or necessarily bind the Crown — because its purpose would be frustrated if the Crown were not bound — the courts on this point are by no means clear or consistent in their interpretation. Federal legislation is likewise inconsistent. In light of this inconsistency and ambiguity, clear and unequivocal expression of legislative intent is required.

In addition, UNDRIP itself covers the minimum standards for survival and dignity of Indigenous peoples. These matters do not only relate to issues found within the portfolio of one minister, or indeed only the federal Crown. If the government’s intent is the implementation of UNDRIP, it would have implications beyond just Indigenous Services Canada or Crown-Indigenous Relations and Northern Affairs Canada but also for all federal ministries, departments and agencies. As such, at a minimum, it must be clear that this legislation binds Her Majesty in right of Canada to avoid any ambiguity down the road.

The third part of my amendment puts the words “force and effect” into the “Purposes of the Act.” This is a particularly important piece as, without it, Bill C-15 grants UNDRIP no legal force or effect in Canadian law. The language that is presently being used in the bill adds nothing new to the Canadian legal landscape, as UNDRIP is already used by courts to resolve statutory ambiguities, as they do with other international human rights instruments.

This portion of the amendment provides a clear and unambiguous commitment that UNDRIP is to be used by courts in interpreting Indigenous peoples’ constitutional rights, and federal obligations to Indigenous peoples. Furthermore, my suggested insertion of Article 4(c) ensures that Canada intends UNDRIP to be used in aiding the interpretation of section 35 constitutional rights and obligations. In the past, courts have indicated that they will not use UNDRIP to “breathe life” into section 35 unless legislation explicitly says that is its purpose. As such, this portion of the amendment provides the courts with the clarity and direction that they need.

The fourth part of my amendment adds the obligation to consult and cooperate with councils, governments and other entities that are authorized to act on behalf of an Indigenous group, community or people who hold rights, and to also adopt an approach that is specific to each group.

Without this portion of the amendment, Bill C-15 acknowledges diversity but does not commit to having diversity steer or inform the actions of Canadian political and legal bodies. Canada has previously stated its commitment to adopt a distinctions-based approach in implementing UNDRIP. Indigenous communities across Canada have a wide variety of cultures, traditions, spiritualities, languages and needs. Without committing to using this diversity to inform the implementation of UNDRIP, the bill will be ineffective in fulfilling the unique purpose and responsibility it has to different nations.

This portion of the amendment ensures that consultation and cooperation occurs directly with section 35 rights holders. To be clear, Indigenous political organizations or advocacy bodies such as AFN, MNC or ITK are not rights holders.

The fifth and final portion of my amendment enshrines a need for the minister, within 60 days of Royal Assent, to make public a process for Indigenous participation in both the development of the action plan, as well as its implementation by groups and individuals who are section 35 rights holders.

As has been stated multiple times, Indigenous inclusion in the drafting and creation of this bill was woefully inadequate. While the government fell short, again, of their fiduciary responsibility in drafting the bill, this part of my amendment would ensure that the government’s intended process for the participation of rights holders be made publicly available with regards to their involvement in the action plan. This assurance and transparency have been sorely lacking to date.

Honourable senators, I am hopeful that this breakdown of my amendment was helpful. Although the bill remains imperfect, these amendments would undeniably improve it. It is my hope that the concerns of peoples who will be directly impacted by this bill are heeded and that we break the cycle of prescriptive, colonial legislation making that has been emblematic of the divide that has continued to plague Canada’s relationship with the First Nations, Inuit and Métis peoples who share this land.