Moved third reading of Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples.
She said: Honourable senators, I am a Métis Ukrainian who was born, raised and live on Treaty 6 territory, and it is my profound honour to rise once again in this chamber today as sponsor of Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, a bill that answers the TRC Calls to Action 43 and 44. Senators, it’s time to finally take action.
Colleagues, you will recall that this bill has seven clauses and two purposes. First, it affirms UNDRIP as having application in Canadian law and, second, it provides a framework for the Government of Canada’s implementation of the declaration.
You will also recall that the Standing Senate Committee on Aboriginal Peoples completed a fulsome study of Bill C-15. Our study included 20 panels, dozens of witnesses and abroad spectrum of opinions and expertise that outlined the benefits and challenges of the bill.
We also heard similar perspectives from multiple witnesses which, from an evidence-gathering standpoint, repetition indicates that we’ve reached saturation and most likely heard all perspectives. The process was well planned, systematic and I thank all committee members for their thoughtful questions and respectful study of the bill.
Colleagues, it’s important to discuss and dispel the fears that have been expressed regarding what Bill C-15 will and will not do. We had witnesses who expressed concerns that Bill C-15 would immediately adopt the 46 articles of UNDRIP into Canadian law and cause legal chaos. One witness was also apprehensive that provincial laws would be affected as well.
Colleagues, this is not accurate. The declaration is currently and will remain an interpretive instrument. In fact, since 2010, when UNDRIP was endorsed by the Harper government, Canadian courts have been able to use UNDRIP to interpret Canadian law. This will not change should the bill receive Royal Assent.
On the other hand, some Indigenous people have said that Bill C-15 will therefore either accomplish nothing or diminish existing rights and/or treaty rights.
Colleagues, I understand the cynicism of Indigenous people and leaders who may not believe or trust that any government would be invested in real change. However, Minister Lametti stated in our committee:
By bringing it into specific implementing legislation, we have reinforced that interpretive role and given greater weight to it as a document. The declaration itself, as well as the rights contained in the preamble, have interpretive force in Canadian law.
The minister went on to say:
It also binds us. To that extent, this is implementing legislation.
This is so important, colleagues, because we are not here debating a policy or a program announcement. Bill C-15 is legislation that binds this and future governments to the process of revising laws to reflect the UNDRIP articles and to develop and implement an action plan. It obliges the Canadian government to work in consultation and cooperation with Indigenous peoples, broadly defined, to accomplish these tasks.
And importantly, Bill C-15 includes a requirement for the development of annual reports, and those reports are then permanently referred to the relevant committee of each house of Parliament for study, consideration and comment on progress. It holds the federal government publicly accountable, and such transparency will no doubt influence the success of these consultations.
To be clear, this means the Senate will continue to have a role to play in providing parliamentary oversight, and the annual report will contribute to accountability for making progress on implementing the declaration.
In fact, Dr. Sheryl Lightfoot told the committee that Bill C-15 is setting a new standard in the implementation of UNDRIP. It’s the combination of: one, legislation to set out a systematic and methodical framework; two, the specific provisions for the creation of a national action plan; and three, the reporting and accountability framework that makes Bill C-15 globally unique and precedent setting.
Further, many Indigenous lawyers and scholars have spoken about the power of Bill C-15 to assist in resolving some of the more difficult and complex issues that have plagued First Nations for decades. Mary Ellen Turpel-Lafond stated:
One of the reasons Bill C-15 is important is because we are dealing with a very significant time where work is happening within First Nations, and that work needs to be aided by the implementation of the United Nations Declaration on the Rights of Indigenous Peoples. I don’t view this bill as a bill that strips away the rights of Indigenous people; I view it as a bill that affirms the rights . . . .
She went on to say:
. . . there are debates inside First Nations, in particular about the proper role of who represents who, the continuing role of the Indian Act and the significance of strengthening the position of treaty First Nations. I think Bill C-15 will help us sort through those issues.
That is to say, it is Turpel-Lafond’s expert position that Bill C-15 is an important tool that will help us resolve those long-standing issues. This is a position also shared by many Indigenous legal scholars and experts.
In addition, colleagues, much has been said about the consultation process the government undertook to develop Bill C-15. While it is true that former MP Romeo Saganash consulted Indigenous people across Canada in the development of his private member’s bill, Bill C-262, and it is also true that the government used that bill as the starting point for the development of Bill C-15 — and, subsequently, the government did hold 70 consultation meetings nationally and spoke with hundreds of Indigenous people — the fact remains that some Indigenous leaders are not satisfied with the way in which they were consulted and therefore do not support Bill C-15.
It is also true that Indigenous people have different expectations of consultation from a lone Indigenous MP than they have of the government in the depth, breadth and scope of consultation on a government bill that is centred on Indigenous human rights. However, there are also many perspectives on how the consultation went and support for the bill.
Take, for example, the leadership in the beautiful Treaty 6 territory where I reside. On one hand, we heard from the Grand Chief Okimaw Watchmaker and other chiefs that they do not support the bill. Of note, Chief Arcand from the Alexander First Nation gave an articulate, thoughtful presentation about how he would prefer to restart the treaty negotiation tables of 1995 than be distracted by consultation on an action plan.
On the other hand, we received a written submission from four treaty rights-holding chiefs, including the past two grand chiefs of Treaty 6, current Cree Nation chiefs and Alberta regional chiefs supporting Bill C-15, stating:
The processes contemplated in C-15 are sufficiently flexible to implement the UN Declaration at the Treaty table and as part of an ongoing Treaty relationship. In our view, it will be critical for First Nations to proactively take the lead in the processes mandated in Bill C-15 . . . .
Senators, it should not be alarming that there are different opinions about a bill across 600 First Nations. In the same way that we do not expect all actors in any other level of government to agree on an issue, we should not expect consensus across Indigenous leadership either. First Nations, Métis and Indigenous communities are diverse culturally, politically and geographically and will hold a variety of valid opinions.
However, colleagues, it would be a disservice to the breadth of evidence we have gathered to omit the fact that the majority of Indigenous leaders support Bill C-15. This includes: the national leaders of the Assembly of First Nations, the Métis National Council and Inuit Tapiriit Kanatami.
We also had letters, briefs and testimony from many grassroots rights holders who supported Bill C-15, including: the Chief Councillor of the Haisla Nation, the National Chief of the Dene Nation, the Grand Chief of the Grand Council of the Crees, the Grand Chief of the Gwich’in Tribal Council, the Chief of the Pasqua First Nation, the Chief of Cree Nation of Chisasibi, the Cree Nation of Nemaska, the Chief of the Samson Cree Nation, the Cree Nation of Eastmain, the Cree Nation of Wemindji, Tzeachten First Nation, Oujé-Bougoumou Cree Nation, the Chief of the Lennox Island First Nation, the Chief of the Cree Nation of Washaw Sibi, the Chief of the Whapmagoostui First Nation, the Chief of Enoch Cree Nation and the Chief of Louis Bull Tribe.
We also heard from Indigenous business leaders about how Bill C-15 can facilitate economic reconciliation, and the role that sustainable economic development can and must play in addressing ongoing socio-economic disadvantage. These witnesses include: the Canadian Council for Aboriginal Business, the National Indigenous Economic Development Board, the National Aboriginal Capital Corporations Association and the First Nations Major Projects Coalition.
There is also a large cadre of First Nations, Métis and Inuit lawyers and scholars which want us to pass the bill, even if they have suggested ways to improve it. They include: Mary Ellen Turpel-Lafond, Ellen Gabriel, Dr. Noami Metallic, Dr. Sheryl Lightfoot, Dr. Val Napoleon, Dr. Brenda Gunn and Dr. Pam Palmater.
Let’s just pause, colleagues, to acknowledge this powerhouse of brilliant, thoughtful Indigenous women leaders, dedicated to the full realization of Indigenous human rights. Their voices have been and will remain so important in the implementation of UNDRIP.
In summary, there is an evidence base for the claim that Bill C-15 has broad support.
Finally, I want to be clear, honourable senators. Although I am very grateful to the government for fulfilling the promise it made in this chamber in 2019, implementing the United Nations Declaration on the Rights of Indigenous Peoples is not about this government or its accomplishments. While I’m grateful to our colleagues on the Standing Senate Committee on Aboriginal Peoples, as well as the clerks, translators and other staff for the hard work we completed in the study of this bill, passing Bill C-15 is not about congratulating the Senate or the sponsor of the bill.
Passing Bill C-15 is about honouring the leaders of the 1970s who began this process of reclaiming basic human rights for Indigenous people. It’s about the next step after over two decades of work done by Indigenous people at the UN to draft, negotiate and adopt the declaration.
It’s about respecting every Indigenous advocate, legal scholar and academic who has worked on bringing the declaration home since 2007. It’s about acknowledging every one of over 7,000 residential school survivors who gave testimony about their experiences of living without human rights, and the trauma they and their families carry. It’s about the thousands of children who died anonymously at the schools and their families who are still grieving.
It’s about every missing and murdered Indigenous woman and girl. It’s about the children who are growing up in Indigenous communities right now without adequate housing, water, health care, nor access to the same educational supports as other Canadian children.
It’s about access to land and water, to traditional foods and medicines, and to the ability to practise traditional culture and spiritual ceremonies freely and with pride. It’s about every pipe that was lifted and prayer that was offered for the healing of Indigenous people, families and communities.
As we move forward and conclude our discussions on Bill C-15, we must remember that the declaration stands for affirming Indigenous people’s human rights and self-determination. The declaration is about realizing a full range of economic, social, cultural, political and civil rights that are essential to the dignity and well-being of Indigenous peoples.
It is about addressing the extensive and mounting evidence of systemic racism and discrimination faced by Indigenous peoples and the legacies of colonialism. To this day, the evidence continues to grow through countless reports and inquiries exposing discriminatory practices, whether in health care, policing, the justice system or delivery of public services.
Senators, this is another step, a big step mind you, in the implementation of Indigenous human rights in Canada.
Let’s not fumble the ball before we cross the end zone. Let’s pass this bill. Our ancestors and our great-grandchildren are counting on us. Kinanaskomitin. Hiy hiy.
Thank you for your remarks, Senator LaBoucane-Benson. You spoke a lot about consultations with the various Indigenous peoples in Canada and their reactions, both positive and negative.
My question is about the consultations with provincial and territorial premiers. I have here a letter dated March 29. It was written by the premiers of New Brunswick, Quebec, Ontario, Manitoba and Saskatchewan, who feel that they were not adequately consulted or heard.
I will quote them:
Canada already has a unique legal and political framework, as set out in our Constitution, treaties and the common law, which affirm and protect the rights of Indigenous peoples. This framework was painstakingly clarified by decades of policy decisions and court cases, and it reflects our country’s unique context.
Bill C-15 will replace this known legal framework with decades of uncertainty, and that will jeopardize investments and future reconciliation efforts.
Naturally, I would add my own concern, which is the importance of recognizing the very unique context of Indigenous peoples in Canada, which differs significantly from that of other UNDRIP signatory states.
Here’s my question: Under the circumstances, do you believe that all the necessary adjustments were made to Bill C-15 to adapt it to Canada’s unique character as a whole? If so, how?
I would remind our colleagues that the consultation continues. I would also remind colleagues that if we were to pass this bill and it reaches Royal Assent, nothing would change. UNDRIP is an interpretive tool that has been used since 2010 in Canada. After Royal Assent, it will continue to be used as an interpretive tool. The action plan is something that will be developed and will help better express Indigenous human rights. Thank you.
Do I understand correctly from your answer that my Province of Quebec, which already uses its own effective consultation process based on a nation-to-nation discussion approach, will not have a new federal assessment procedure imposed upon it that could complicate the development of projects in Quebec, or any other province?
Thank you for that question. I would say that Indigenous people in Quebec already have section 35 rights. These rights have been studied often. Decisions have been made by the Supreme Court of Canada, and all of that jurisprudence would carry forward.
UNDRIP is already being used as an interpretive tool. From that perspective, nothing should change immediately. Now, what happens with the action plan, the development of principles and the definition of free, prior and informed consent, or FPIC, will be developed over time.
Senator LaBoucane-Benson, last June, the government started consultations with the national Indigenous organizations and did not include grassroots organizations in its consultations until the fall, and that was after a draft had been developed.
The consultation list, as submitted by the government, actually included people who clearly said they were never consulted.
Now, free, prior and informed consent, or FPIC, is said to mean consultation ab initio — “from the beginning” — before drafts are developed by the government or the national Inuit organizations. I’d like to ask if you would agree that this top-down approach that we heard about in our study is the wrong model and contrary to FPIC, as it’s envisioned in the UN declaration.
I thank my colleague for the question. What I would say is that we have spoken much about consultation in our committee. We heard from the minister saying that they promise to do a better job of consultation going forward. Thank you.
You talked about the action plan, senator, and we’ve recently had some experience with an action plan, certainly not as broad as the wide scope of the 46 articles in the UN declaration, and that is the action plan following the recommendations of the National Inquiry into Missing and Murdered Indigenous Women and Girls. After two years, and a year after the target date, the best that the action plan for that inquiry could accomplish was a report to make a plan — a plan to make a plan — without any actions or clear financial commitments.
On the heels of that experience, just in recent weeks, I’d like to ask you — and maybe in two years we can compare notes — how realistic do you think it is, especially since our committee recommends that the action plan should deal with complex issues like FPIC, to name one, to have approved an amendment to the bill in the other place that reduces the time for completing the action plan from three years to two? Would you bet that’s going to be achieved?
Thank you for that question. I would say that what gives me a lot of hope about this action plan is that there is an accountability framework baked into the legislation, so my sincere hope is that it will be done in two years and that the accountability framework helps us all hold this government and any future government to account and make sure that they’re actioning the action plan.
I was hoping to get you on the record, Senator LaBoucane-Benson. You said you sincerely hope. Don’t we all.
But I wanted to ask you, is it realistic, and do you predict, that the action plan will be completed within two years as set out? As you pointed out, this is not a policy. This is legislation without consequences for its breach.
Do you believe that the time commitment solemnly set out in the legislation will be met? Is that your prediction?
I thank my honourable colleague for that question. As he knows, I don’t have a crystal ball in front of me, and I really do not know how the consultations are going to go. It really depends on many factors.
I do have faith that this action plan can be done. I know when we had our very first committee meeting, I asked the government — or maybe it was in another meeting — if they’d consider identifying low-hanging fruit first and get those pieces done so the more complex issues could be addressed later. Again, I have no power over that, and I don’t have a crystal ball.
Hon. Marc Gold (Government Representative in the Senate)
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This is an easy question. A simple “yes” or “no” would suffice.
In response to concerns about the impact of this bill on provincial regulatory authorities, such as in my province of Quebec, would you not agree that the bill is very clear in that it applies only to the laws of the Parliament of Canada — federal laws — and therefore not to provincial laws and the regulatory authorities that flow from provincial laws?
Indeed, would you also not agree that some provinces, like British Columbia where I had the privilege of studying, have also decided on their own initiative to use the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, and to adopt it with regard to their own jurisdictions?
Thank you, Senator LaBoucane-Benson. Following up on Senator Gold’s question about the applicability of Bill C-15 to the provinces, may I ask a similar question with regard to the territories? We are in a different situation from the provinces in that, for example, the Yukon Act and the Yukon Environmental and Socio-economic Assessment Act are both federal legislation.
How is it proposed that Bill C-15 will deal with these pieces of federal legislation respecting the Yukon territorial government?
As a follow-up to that, the Yukon Environmental and Socio-economic Assessment Act is a federal act, and Bill C-15 is purported to apply. I understand your response regarding the Yukon Act. It is also federal law. Could the senator perhaps revisit the question?
Thank you, senator. I do want to make it clear that, as I understand, most Yukoners are fully in support of Bill C-15 and UNDRIP; a unanimous motion was passed in the Yukon Legislative Assembly some time ago.
The action plan will be critically important, particularly how it interfaces with this legislation. It will be very important to Yukoners. I would take the senator’s commitment to and faith in the action plan that it will be developed in concert with Yukon First Nations respecting the treaties that have already been recognized under the Constitution. Thank you.
This is a quick question, senator. This won’t create a bottleneck in legislation or be a veto in any regard? Is that what you’re saying? Because there is a lot of fear that this might create even more of a stagnation between the First Nations and the rest of Canada than there is now.
Thank you for the question. Some of the most brilliant legal minds in Canada who are contemplating how UNDRIP will be implemented in the Canadian context have spoken on this, and they have been very clear that this is not a veto. We heard witnesses who spoke in a great deal of detail about how consent-driven tables and the consent-driven framework negotiations are perhaps the only way that good projects are going to get approved in Canada.
The idea with a consent-driven negotiation is that Indigenous people are brought in at the beginning, at the very beginning of project proposals. They’re part of the decision-making process, and in that way really good projects get to go forward.
So, no, this is not a veto. It’s not a veto. It’s an opportunity for Indigenous people to participate fully in the economic landscape of Canada.
Senator, the issue of the threat of federal intrusion into provincial jurisdiction, with respect to Senator Gold, is not black and white, yes or no. The federation has many areas of shared jurisdiction — health, environment, child welfare, for example — and it is particularly in these areas of shared jurisdiction that, under the cover of the federal jurisdiction regarding Aboriginal peoples under the Constitution, it allows the federal government to intrude in areas of responsibility of the provinces and territories.
There’s no better example than child welfare. You may know that Quebec is suing Canada over its invasion of their jurisdiction in child welfare with respect to Indigenous people. I hear there are rumours that the feds are, as we speak, developing health legislation that is going to — under the cover of legislation respecting Indigenous peoples — invade clear provincial jurisdiction in that area.
I would like to ask Senator LaBoucane-Benson: How do we prevent federal intrusion into provincial-territorial jurisdiction and areas of shared jurisdiction? How do we be assured that under the cover of Indigenous rights this kind of intrusion into provincial areas isn’t going to continue, which is, I think, what the premiers of six of our provinces, with a majority of our population, are really concerned about?
Thank you for the question. First of all, as I said before, this bill applies only to federal law.
I disagree with your assertion that under the cover of Indigenous rights that somehow the jurisdiction of Indigenous children — who has care and control of Indigenous children — should be with the province. I think when we debated Bill C-92 in the last Parliament, this was something that the majority of senators agreed — that the jurisdiction of Indigenous children should be with Indigenous families and Indigenous nations and organizations.
So I don’t think Indigenous rights are a cover for anything. I think that part of reconciliation is figuring out where jurisdiction lies for Indigenous people in their ability to self-determine. This isn’t a cover. This is reconciliation. This is our country taking the next step in ensuring that Indigenous people have the opportunity to navigate their own ship, that they have the capacity to self-determine. Thank you.
Would you agree, Senator LaBoucane-Benson, that, given your answer, the federal government should reach out to and do a better job of assuring provinces that in these areas of shared jurisdiction and territories, that their jurisdiction will be respected?
Thank you, senator. It’s my understanding that the federal government did reach out to the provinces and has had numerous conversations with them. So I can’t comment on what would be a better job of doing that. Thank you.
Senator LaBoucane-Benson, I want to just go back to Senator Gold’s question because you will recall that at clause by clause we uncovered a bit of an anomaly in the wording around the laws of Canada — Canadian law and the French translation — which was lois fédérales, I believe. Forgive me. But it was surfaced by our intrepid Senator Forest-Niesing as being what appeared to be one way in the French version and potentially a different meaning in the English version. Part of our observations, which have been appended to the report, talk about this.
But I think in addition to the concerns that Senator Duncan has, if it were possible for us to get a document tabled with us that clears up that it is only federal laws that will be impacted, that would go a long way to addressing Senator Patterson’s concerns, the concerns of other premiers and clear up this one little question about whether there was a difference in the French version for those who are reading French and would view it as applying to them, and the English version, which would naturally be the purview of other people’s interpretation. Thank you.
Thank you, senator, for that question. The testimonies of officials made it very clear that there was no ambiguity. They mean the same in French and in English. It occurs often within Canadian law that those terms are used interchangeably. I think that, although maybe for English speakers we might feel that they don’t mean the same, I’ve been assured by officials that they do.
Thank you very much. When we’re dealing with issues of jurisdiction between the federal and provincial governments, section 91.24 of the Constitution Act of 1867 says pretty clearly that the federal government has jurisdiction for “Indians, and Lands reserved for the Indians.”
When that was first put in place, obviously there wasn’t much terminology with respect to status Indians, non-status Indians, Métis, treaty, non-treaty; the whole gamut of labels. One of my predecessors, Harry Daniels, who was the President of the Native Council of Canada, which later became the Congress of Aboriginal Peoples, launched a court action. That court action went to the Supreme Court because essentially they wanted to make sure that because the federal government throughout the years had created different labels of “Indians,” that they have jurisdiction. And the Supreme Court, in fact, said that yes, the federal government does have jurisdiction.
So with respect to the previous questions you had, and with issues of jurisdiction, don’t you believe that if the federal government actually implemented and respected that Supreme Court decision, which is very clear, perhaps First Nations people in the future, and contrary to where they are now, may not get mixed into the jurisdictional wrangling between the provincial and federal governments?
I thank my colleague for his comments. I think that this is an issue that you have outlined that is part of that whole revision-of-laws piece — clause 5 of Bill C-15 — that is so critical. We need to take a hard look at the laws of Canada, look at Supreme Court decisions, look at the articles of UNDRIP , and make revisions to our laws that are meaningful for Indigenous people and bring Indigenous peoples’ capacity to self-determine and have Indigenous human rights to the forefront. Thank you.
A quick comment in response. I thank the senator for her response. It’s amazing; when I was National Chief I was approached by a former Minister of Indian Affairs asking me if I would drop the Daniels case from proceeding. So I’m very glad that I held my ground, held my principles and that I said, “no.”
I have a question for the sponsor of Bill C-15, Senator LaBoucane-Benson.
I have in front of me the bill that passed in the House of Commons on May 25, 2021.
Clause 4 states that the United Nations Declaration on the Rights of Indigenous Peoples is a universal international instrument with application in Canadian law.
I will read from that clause.
It says “. . . with application in Canadian law . . . .”
There is no reference whatsoever to federal laws in that text, at least not in the version I have, but perhaps you have a more recent version.
Can we get a clear answer from the government, through you, Senator LaBoucane-Benson, as to what the precise reference is? When we speak of Canadian law, that refers to the laws that govern Canada in its two components, federal and provincial. If we are talking about federal laws, in principle, that refers to the Canadian Parliament, and if we are talking about provincial jurisdictions, that refers to provincial laws.
Could you, or someone else through you, please clarify that question?
Thank you for your work and your sponsorship on this matter.
I was wondering, from a project development point of view, where are the project developers? How do they fit into the framework here as an interpretative instrument? You will remember, of course, the excellent work that was done on Bill C-69 by yourself and other members of the committee. It was at that point in time, looking at many criteria, that it had to be considered in the context of the impact assessments. That becomes a very important matter because I think you would agree with me that project development is key to economic growth, and the balancing of the interests of all stakeholders must be considered in that context.
In thinking about Bill C-15, the specific question that I have is, what if consent cannot be obtained? Are there conditions under which, even if consent is not obtained in the normal course of these consultations, a project can still proceed, and under what circumstances?
I would remind my colleague that upon Royal Assent, FPIC is not made into Canadian law. The articles of UNDRIP are used to interpret Canadian law. The jurisprudence of section 35, which is actually in the Impact Assessment Act, would go forward.
If you want to talk about how the articles work, there is balancing even in the articles. There is an article that speaks about FPIC, and there’s also another article that talks about balancing. Consent is not consensus. There has to be a balancing of all perspectives on that.
When I talk about consent-driven tables in negotiations, the people who have done this successfully in major projects say that when Indigenous people are brought to the table at the beginning, when they’re part of the decision-making process all the way through, it’s much easier to find the win-win. It’s much easier to find the consent of all parties. When we get to a consent table and they successfully negotiate an agreement, Canada wins, industry wins and the First Nation wins. That’s what the idea of free, prior and informed consent is. It’s not a veto. It’s how we get to win.
The issue for me, when you look at this balancing, and I think you agree, is that it’s not a veto. I’m not taking issue with that, obviously. It’s an interpretative instrument. The law is well-known for having interpretative documents. This is not the only interpretative instrument. Interpretative instruments can take on the notion or the legal consideration of almost being a substantive document.
How do you go from an interpretative document to something having a more substantive impact? I’m not trying to suggest that I’m looking for some legal insight into how these documents work. It seems to me the most important things, if consent is not achievable, is that you then say to yourself that it can’t go ahead, or it still can go ahead. From my own perspective, when I look at an interpretative instrument, you need to step back and ask yourself whether in a democratic society it may still be able to go ahead, provided that there are rights protection and mitigation. I think those are important concepts. Do you see it potentially functioning that way?
Honourable senators, I’m humbled to rise today to speak briefly with respect to Bill C-15. I want to share with you the path that got us here today, the third reading of this bill, following its journey through its pre-study and subsequent study by the Standing Senate Committee on Aboriginal Peoples. I can share with you, honourable senators, that getting to this moment was somewhat of a herculean task, completed in the midst of myriad challenges and yet yielding, I hope, significant results, both in terms of receiving the applied wisdom of expert legal and Indigenous witnesses and hearing the inspired passion of rights holders and those directly impacted by the bill’s proposed provisions.
When we received news this spring that the bill would come to our committee, I felt a mix of both exhilaration and trepidation. After all, UNDRIP has been in the domain of civil society and public policy as an international instrument, certainly since its adoption by the United Nations on September 13, 2007, and for many years before that. Honourable senators, we were driven by the notion that we had to get this right. We had wrestled with its legislative precursor Bill C-262 in what has become a very difficult and testing experience for a variety of reasons. We all know that iteration of the bill did not proceed two years ago, but still, many lessons were learned, and your committee did its level best to apply them.
We were determined to have a fair, balanced, transparent and pragmatic study. We set out to listen to equal numbers of supporters and those critical of the bill. And we sought, with steely determination, to ensure that we had the necessary time and means to conduct our study in as fulsome a manner as possible, smack in the middle of a pandemic and a virtual and hybrid sitting reality with which we were forced to contend. But, honourable senators, I’m again humbled to say we got things done in ways that certainly exceeded my own expectations.
In the period from May 7 to June 7, we had 24 hours of meetings over six meeting days. We received 52 written briefs and 23 pieces of “individual opinion” correspondence. During that time, we also managed to fit in two panels of study in respect of the Senate’s scrutiny of Bill C-30.
Regarding Bill C-15, we heard directly from 52 witness: organizations and individuals. This number increases to 81 when technical advisers who were “at the table” are included. Our hearings entailed long days of meetings, questioning multiple panels with diverse and sometimes polarized views.
I want to express my profound thanks and appreciation to all Standing Senate Committee on Aboriginal Peoples, or APPA, members. You worked wonderfully together in a spirit of cooperation and collegiality, and your dedication and patience in the face of this heavy undertaking has been amazing. In particular, I would like to salute my three fellow members of APPA steering, Honourable Senators Dennis Patterson, Brian Francis and Scott Tannas. You were committed to getting this done, and you were all singular in your determined sense of purpose. You have been sterling examples of how to get things done in the Senate. I am indeed grateful and thankful for your truly collaborative work.
I hope we’ve set a new best-practice standard for the way a committee can reach across all lines and perspectives and inform the Senate on its contemplations of complex bills such as this one.
We could not have achieved all that we did without the incredible contributions of the team from the Committees Directorate: our clerk Andrea Mugny, her assistant Nathalie Boutros and, of course, our Principal Clerk of Committees, Shaila Anwar.
Equally critical to the success of this undertaking was the hard work and dedication of our Library of Parliament analysts Sarah Fryer and Brittany Collier. There are so many unnamed people whose contributions we appreciate — translators, stenographers, broadcast technicians, admin staff — those whose efforts we often take for granted but without whom we couldn’t have gotten this work done.
We especially give thanks for those on the front line who could not work from home and had to travel to the Senate at the risk of their own personal health so that we might get our study done. None of this remarkable work could have been done without your skilled and dedicated efforts. We remain in your debt, and we give such thanks for your unfailing service.
Last, but certainly by no means least, we all owe a debt of gratitude to former MP Romeo Saganash whose private member’s bill, Bill C-262, paved the road to the potential adoption of Bill C-15.
Honourable senators, over the next few days, you will hear much from our colleagues in respect of the depth and breadth of our study of this bill and the key themes our analysis has identified. As you consider perspectives and inform your own voting intentions, I would offer only one thing: Whether yea or nay, I respectfully and humbly encourage you to vote and as best as you can refrain from abstaining.
I do so not in an attempt in any way to sway your choice. Rather, if there is a standing vote versus a voice vote, Indigenous peoples need to clearly know where we as parliamentarians stand. It is for this reason I encourage you, honourable senators, to please cast your vote one way or the other.
This matters, colleagues, so much to First Nations, Métis, Inuit, rights holders, treaty nations and most emphatically to the pursuit of true nation-to-nation relations. It matters, critically, to Canada, as it wrestles with how to move forward in peace and friendship with Indigenous peoples.
Thank you, Senator Christmas, for that very gracious acknowledgement of a committee that faced a difficult task. I was truly impressed with the kindness and cooperation of people of opposing views. It was truly a delight, actually, to attend and work on that committee. Thank you.
Honourable senators, I rise today to speak at third reading of Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples.
The bill’s intent, as you may surmise from the title, is to enshrine the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, into Canadian law.
UNDRIP has been supported by Canada since the Harper government endorsed it in 2010. A statement from the Assembly of First Nations noted that:
Now is our time to work together towards a new era of fairness and justice for First Nations and a stronger Canada for all Canadians, guided by the Declaration’s core principles of respect, partnership and reconciliation.
Advancing the objective of reconciliation is commendable. I don’t think anyone in Canada reasonably opposes that. However, for the reconciliation to happen, it must have a genuine foundation. A law that would purport to advance this — again, commendable — objective would have to be credible.
So we must ask ourselves if Bill C-15 is indeed credible. Does it reflect the aspirations of Indigenous peoples across Canada?
As a member of our Standing Committee on Indigenous and Northern Affairs, I listened to many individuals and communities, including rights holders, who came before us to tell us what C-15 means for them. While many support the bill without reservation, we also heard from many who could not give it the same seal of approval.
We specifically heard that the language is unclear and insufficient and that the consultative process was incomplete and non-reflective of the views of many large communities.
In a letter to Prime Minister Trudeau, Stephen Buffalo, President and CEO of the Indian Resource Council, stated:
Imagine the irony of introducing a law with no consultation and no real attempt to obtain ‘full informed consent’ that will give undefined groups of Indigenous Peoples an undefined right to ‘full informed consent’.
In the same letter, he said:
Besides us, the National Coalition of Chiefs, the leaderships of Treaty 6, 7 and 8 of Alberta, and dozens of other Nations across Canada have expressed concern about how this bill will work in practice and have called for major amendments.
The Association of Iroquois and Allied Indians, representing seven nations in Ontario alone, has more to say on the subject.
Deputy Grand Chief Stacia Loft noted publicly:
Many Nations do not have an issue with UNDRIP but many take issue with Canada’s version of UNDRIP as their process of implementation has been flawed from the start.
In describing the consultation process, the Deputy Grand Chief noted that:
Meetings were capped, time was restricted, and engagement periods were not extended to make proper use of time and information.
Are we then to take this to be the free, prior and informed consent required by the declaration?
Our colleagues in the other place asked the Minister of Crown-Indigenous Relations, Carolyn Bennett, to define FPIC in the context of the bill. She noted that doing so would require consensus among our Indigenous partners. This is something that has certainly not been reached and that cannot be assumed.
In a briefing on the private member’s bill that preceded Bill C-15, Ross Pattee, Assistant Deputy Minister in the implementation sector at Crown-Indigenous Relations, said, “There is no international or domestic agreement on the meaning of the principle of free, prior and informed consent.”
For a more workable definition, we can turn to our former colleague Senator Murray Sinclair, who defined FPIC simply. He said:
Free, prior and informed consent is . . . before you affect my land, you need to talk to me, and you need to have my permission.
Consultation means more than simply aggregating the views of lobbyists and organizations that are politically friendly with the governing party.
As the Association of Iroquois and Allied Indians said:
Canada has not adequately engaged with Indigenous Peoples and the six weeks they have set aside to do this have only done so with certain national organizations and provinces.
I believe the consultations also require much more than rushed hearings pushed through during a global pandemic.
As Russ Diabo, speaker for the Defenders of the Land, Idle No More and the Truth Before Reconciliation Network, noted:
How do you justify doing engagement on a federal law that will have lasting intergenerational impacts during a pandemic when many Indigenous communities and nations don’t even have the capacity to respond or analyze properly how their rights will be impacted? Many don’t even have access to Wi-Fi.
Grand Chief Okimaw Vernon Watchmaker, from the Confederacy of Treaty Six First Nations, went even further, when he said:
Honestly, the consultation on this bill has not been honourable. There has been no discussion or engagement process, no draft submitted. The first time we heard that there was legislation was in December 2020, during the pandemic.
Substantive consultation means reaching every community and rights holder. It is not a pro forma process with predefined outcomes.
Consultation in particular means speaking to Indigenous women, Indigenous youth and other groups like trans and two-spirited Indigenous peoples.
In the 2019 federal budget, Canadian Roots Exchange was named by the federal government as a leading Indigenous youth organization. Their views on Bill C-15 are elaborated in a submission they made to our committee. They state that:
The youth we’ve spoken to have been clear: implementing UNDRIP as Canada’s framework for reconciliation now and into the future will not reflect their or their communities’ needs and values unless it is done in a good way. This means a substantive, accessible, meaningful, and continuous engagement on implementation; for communities to be empowered to implement the Declaration in their own way; and that accountability and oversight must be Indigenous-led . . . .
This call for Indigenous leadership reflects the sentiments of Mr. Buffalo, whose comments I opened with. Further in his letter, he notes that:
First Nations’ Peoples have had enough, we do not want lip service from Ottawa with a paternalistic pat on the head as they tell us what is good for us. The attitude and approach from Ottawa is that you are making this new law to help us, and we should not worry is a prime example of paternalism and colonialism. . . .
Mr. Buffalo goes further on the topic of consultations, saying:
It is almost unimaginable that Ottawa did not meaningfully consult and did not obtain consent from First Nations on something so fundamental. . . .
And directly to the point, he said, “It is time for the Government to stop ignoring us.”
With these shocking gaps in the consultation process, it is perhaps no surprise that some refer to this bill, or at least its predecessor, C-262, as, “The Least We Can Do and Still Claim to Support the UN Declaration.”
The federal Liberal Party ran on implementing UNDRIP in 2015 and 2019 and failed to retain the support of the most prominent Indigenous woman in their caucus, not just in general, but specifically on this bill.
Jody Wilson Raybould, formerly the federal Justice Minister and Attorney General, said this in the Globe and Mail:
. . . it has been six years of big promises on Indigenous rights with few substantive and long-term outcomes to show for it. Given this, who can blame certain Indigenous voices for being so against the bill? And who can blame other Indigenous voices for being cautious and lukewarm at best in their support?
Indeed, Indigenous voices that initially applauded Canada’s Liberal government for its support of UNDRIP have different things to say now. In a release on Bill C-218, the Mohawk Council of Kahnawà:ke, speaking of Canada, asks, “. . . how can it be trusted to enact legislation that meaningfully implements the principles of UNDRIP?”
Colleagues, they say these things because they do not trust the promises that have been made.
If this is what consultations have produced, it is no surprise that the provincial governments have their own reservations. They too were poorly consulted.
Arlene Dunn, New Brunswick’s Minister of Aboriginal Affairs, told our committee of a number of factors from the provincial perspective:
One is a lack of engagement in terms of the consultation process. . . . we had three meetings and very little dialogue with respect to this particular issue.
The issue the minister referred to is the lack of clarity regarding what this bill will mean for provincial jurisdictions, an issue concerning enough to warrant six premiers signing a letter asking the Prime Minister to please delay its implementation.
In the letter, the premiers note, “Engagement on this draft legislation has been insufficient and unresponsive to provincial concerns.”
I raised these same concerns with the Minister of Justice at committee and asked him for a simple commitment to further engagement with the provincial governments. He dismissed them as political posturing after complaining that one of the ministers did not pay attention to him, in his characterization of the meeting.
Colleagues, I’ve listened and what I’ve heard tells me there are fundamental flaws with this bill that must be addressed. As a regional representative and, indeed, as a constitutional servant of the interests of our province, I stand with New Brunswick in opposing what they believe to be a usurpation of the provincial jurisdiction by the federal government.
I also stand with the Indigenous communities who have loudly and repeatedly told Canadians that they do not give their consent — free, prior, informed or otherwise — to this hastily constructed and inadequate legislation.
As I noted in the beginning, the objective of advancing reconciliation is a laudable one that all governments in Canada should strive for.
When the Harper government endorsed UNDRIP in 2010, the release said:
. . . Canada believes that the UNDRIP has the potential to contribute positively to the promotion and respect of the rights of indigenous peoples around the world.
Opposing the bill would not be a rejection of the goals but a reflection that better is possible.
We would do best in here to remember that reconciliation will never be achieved with a top-down approach. True reconciliation will be defined by Indigenous people and their communities, and it is our job, particularly in this chamber, to listen.
As Ms. Wilson-Raybould said in the article I quoted earlier, if the Trudeau government seeks true reconciliation, it must, “. . . get out of the way of Indigenous Nations as they determine and shape their futures.”
Until we have a true consensus on what this means, we cannot claim to have conducted the substantive consultations required by the nature of this bill, and as such we should not proceed with it in this form.
Honourable senators, I’m speaking from Regina, Saskatchewan within the Treaty 4 territory in the Métis homeland.
Colleagues, I was recently watching CTV’s “Your Morning” show interviewing Randell Adjei, whom this spring became Ontario’s first poet laureate. This renowned artist and poet released his first book of poetry in 2018 entitled, I Am Not My Struggles.
During the interview, Mr. Adjei referred to a line in one of his poems, “Brokenness:”
There’s a line in there that says, ‘If you’ve never known brokenness, how would you know when you were whole? If you’ve never been broken, then how would you measure your growth?’
I searched out the poem and read it in its entirety, and I was moved by it. It made me think about Bill C-15 and upholding Indigenous people’s rights. During the interview I referenced earlier, Mr. Adjei said the poem is:
. . . really a reminder to all of us that no matter what we go through in life, that . . . hardships are meant to really define us. I think they’re meant to design and prepare us for what’s to come in the future, and build our resilience.
Senators, the United Nations Declaration on the Rights of Indigenous Peoples uplifts many oppressed peoples around the world. People have experienced similar injustices of colonialism and racism and their intergenerational consequences. To me, Mr. Adjei’s words speak to the plight of too many Indigenous people living in Canada and to why things must change.
The poem also reminds me that Bill C-15 did not originate as a benevolent proposal of government. Rather, this legislation is the product of decades of Indigenous grassroots struggle and advocacy, political organization, litigation, demonstrations, commissions, inquiries, survivor testimonials and incremental wins.
From this legacy, Bill C-15 embodies a long, difficult and peaceful campaign of moral suasion by Indigenous peoples and their allies to see our human rights upheld in Canada, as they always should have been.
Most recently, Bill C-15 is the result of the determination of a private member and Cree legislator, Mr. Romeo Saganash, with Bill C-262. His efforts built a coalition of leaders, faith groups, scholars and citizens, and current and former parliamentarians, including the Honourable Murray Sinclair and the Honourable Lillian Dyck.
Now with Senator LaBoucane-Benson’s leadership, the time has come to complete this leg of the historic journey embodied in the provisions of this bill. The time has come to begin the hard work of building a Canada where reconciliation is not a dream but a reality.
The issue before us, senators, is whether we as a chamber say yes to reconciliation through the adoption of Bill C-15.
For some senators, saying yes to reconciliation might mean acknowledging Indigenous people’s rights to self-determination, to participation and to ancestral lands and resources.
For some senators, saying yes to reconciliation might mean admitting Canada’s historic and ongoing record of rights violations, including the betrayal of treaties foundational to this country; the suppression of Indigenous spirituality; and atrocities across Canada, such as occurred in Kamloops.
For some senators coming from different perspectives, saying yes to reconciliation might involve a difficult decision to place a measure of trust in government with Bill C-15’s co-developed action plan, given a record of rights violations and ongoing mistrust.
I of course hear and respect such perspectives but, to all senators, I urge you to say yes to reconciliation with Bill C-15.
Now is the time for all Canadians to move forward together as a federation restored through nation-to-nation relationships, a federation renewed by hope for the future. Now is the time through this bill to empower the younger generations to build a better Canada. What’s more, now is the time for us as senators to rise to the occasion and to use our positions as independent parliamentarians to help ensure that the action plan is successful.
Canada cannot afford to miss this opportunity. The necessity and urgency of reconciliation require us to act. This is the moment.
With the importance of Bill C-15 in mind and the limited window of time before us to Royal Assent, for your consideration, colleagues, I will share three thoughts on the path forward.
In my view, the Senate should adopt this legislation swiftly and without amendment to avoid any risk to the bill. Any issues can be addressed through the co-developed and distinctions-based action plan, with ongoing Senate scrutiny and support, especially at the Standing Senate Committee on Aboriginal Peoples.
Responding to arguments made by Senator Patterson and other opponents of this bill, I emphasize that Bill C-15 will take nothing away from nations preferring to deal directly with government as rights holders, such as at treaty tables, rather than through the action plan. Bill C-15 imposes no obligation on any nation to participate in the action plan, as it is voluntary.
For any nations reluctant about Bill C-15’s approach, that should not be reason to hold other nations back from realizing their rights in this way, which, in my view, is promising and practical.
Second, in terms of the reputation of this institution, the Senate must consider the consequences of not passing Bill C-15 or of unduly complicating its passage. After the experience with Bill C-262, and after Canadians voted for this bill in the 2019 federal election, the Senate must not impede reconciliation. Indeed, by supporting efforts on the action plan, the Senate should work all the harder to make a positive and valued contribution.
Third, the Senate should consider that Bill C-15 will advance Indigenous economic inclusion, contrary to the claims of the bill’s opponents. As I said over two years ago with Bill C-262, I fully support the adoption of the UN declaration through the lens of having spent several decades working alongside Canada’s Indigenous people who are attempting to secure the future through self-determination while maintaining, protecting and, in some cases, restoring their cultural heritage and community values.
Many communities are achieving tremendous success that can be replicated elsewhere, including through the excellent work of national Indigenous business and economic development organizations.
On this point, I reference the evidence presented to the House of Commons and Senate — most recently at the Aboriginal Peoples Committee. The Canadian Council for Aboriginal Business, the National Indigenous Economic Development Board and the National Aboriginal Capital Corporations Association indicated strong support for passing Bill C-15 without delay.
Importantly, the leaders of these organizations — Tabatha Bull, Dawn Madahbee Leach and Shannin Metatawabin — emphasized the need to include economic reconciliation in the action plan. Their collective view was that Indigenous prosperity and rights recognition are inextricably linked. It is their position that the adoption of Bill C-15 will send a powerful message to corporate Canada, helping to establish cultural norms that uphold Indigenous rights and economic inclusion and encouraging private sector commitment to answer the Truth and Reconciliation Commission’s Call to Action 92 on business and reconciliation.
Meaningful action from the corporate sector may include equitable access for Indigenous peoples to compete for jobs, additional training and educational opportunities towards a corporation achieving a representative workforce that reflects the demographics of our nation, as well as education for corporate management and staff on intercultural competency, conflict resolution, human rights and anti-racism.
Just as environmental, social and governance have become increasingly prevalent in corporate responsibility and valued in many equity markets, Indigenous knowledge should also be properly valued and combined with science and corporate governance for inclusive and holistic outcomes. Corporations should become sensitive to social and labour market expectations, contributing to reconciliation and making this a better nation.
These Indigenous business and economic development organizations also indicated that rights recognition is important for true business partnerships with Indigenous nations in resource development contexts, such as through ownership and management roles and skills training and employment commitments. Such approaches can further investor certainty and reduce the risk of litigation.
These organizations also noted that Canada has a history of purposeful economic discrimination against Indigenous peoples through the colonial destruction of traditional economies; the denial of Indigenous nations’ access to rightful lands and resources; the imposition of racist economic restrictions on individuals and communities through the Indian Act; political exclusion from the development of economic public policy; the policies and legacies of residential schools and related assimilation programs, historically approved by the Senate; the inadequate funding of basic living standards, community services and infrastructure; and a lack of fair opportunities for quality education, skills development and access to capital.
It is common thinking that if treaties were upheld and fulfilled, Indigenous peoples today would be making valued contributions to Canada’s economy. Through self-sufficiency and independence, they would be practising their ceremonies, culture and language, and have a proud identity as a nation participating and collaborating within a federation. Instead, they have to campaign and litigate to get the treaties upheld. There isn’t one numbered treaty that doesn’t mention education, yet it isn’t until recently that the gap is being closed on per-student funding and access to education compared to the rest of the country.
Past policies have created ongoing barriers for Indigenous peoples to have full and fair participation in the Canadian economy. I can see clearly how this has held back this country from being all it can be — not to mention the injustices.
Meaningful action from government should include: providing resources and supporting capacity building; enabling all nations to exercise economic self-determination; and allowing them to take full advantage of participating in, and competing for, opportunities that arise. Otherwise, we have the status quo — a lack of access to quality education, skills development and barriers to capital continuing to be an anchor that holds back nations from self-sufficiency and independence.
To achieve economic reconciliation, the action plan will be key. I would encourage the government, and all senators, to give ongoing attention to the need to closely involve Indigenous business organizations in policy development, and to consider Indigenous lenses around economic issues. The result will be greater prosperity for Indigenous communities and the entire country.
In closing, senators, in keeping our eyes on the prize, I quote the Honourable Murray Sinclair’s statement at the introduction of Bill C-15 last December. As a scholar of Canadian history and an inspiration to many in this chamber, including me, Senator Sinclair said:
The United Nations Declaration on the Rights of Indigenous Peoples is at the absolute heart of the Calls to Action of the Truth and Reconciliation Commission . . . With the passage of this bill, in many ways the hard work of reconciliation will only begin in earnest, as many federal laws must be brought into compliance with Indigenous Peoples’ inherent rights. Implementation will be everything. However, this bill is a commitment at the highest level to build the Canada we should have always been, and that we will now build together . . .
The Government’s introduction of Bill C-15 is a deeply moving and encouraging step towards reconciliation. I have confidence that we as a country are on the right path, and I look forward to the legislation’s passage into law. That day, that we can now see ahead, will be a day for celebration.
Senators, a celebration is right; and after this pandemic, we will deserve it. This year, after we pass Bill C-15 into law, our federation’s one hundred and fifty-fourth Canada Day can be the best yet — although sombre and reflective in many ways, realizing the weight of this country’s true history. Nonetheless, with this legislation, Parliament — and the Canadians we represent — will have accepted the truth and said “yes” to reconciliation. That, colleagues, is no small feat.
I urge this chamber to adopt Bill C-15 at the soonest opportunity. Thank you. Hiy kitatamîhin.
Honourable senators, I rise today to speak at third reading of Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples.
I would first like to quote Wendy Lynn Lerat when she stated:
UNDRIP provides hope for a more just, sustainable and decolonized future at a time in history when ecosystems are collapsing as a consequence of global over-exploitation of Creation. Some call this “development,” but in reality it’s a time of human-caused climate change unprecedented in its magnitude and reach.
Colleagues, to be clear, the underlying conflict has always been about land and resources, including the interpretation of the state regarding UNDRIP. Ms. Lerat continues by stating:
Canada began the process by implementing UNDRIP unilaterally and top-down, ensuring that Canada’s own version, with its own definition of self-determination, becomes entrenched in law through Bill C-15. . . .
Also, neo-colonialism is pervasive among those in the positions of power, authority and control within Canada’s colonial Indigenous governance system. . . . We are now being colonized/recolonized by some of our own Indigenous people. I fear the foolish actions of our own will lead to the end of ourselves as distinct peoples.
Truth before all else — that is all that we, as First Nations, have asked of the government. But there has been no truth in the treaty process and no truth in the process of consultation.
Silence — discouraging Canadians from advocating for amendments that would strengthen this bill and then vilifying those who would bring them forward. Behaviours like these are colonizing and not those of allies.
These actions are enemies of sober second thought and our parliamentary duties. What should be a powerful moment of working with government to implement human rights for treaty peoples turns out to be just another face of oppression.
I believe there is much work to be done on this bill and I am willing to sit into July to study this responsibly.
Honourable senators, the amendment I am introducing today — which I will read towards the end of my time — incorporates five different areas of improvement. I would like to explain this amendment now.