United Nations Declaration on the Rights of Indigenous Peoples Bill

Motion in Amendment Negatived

June 10, 2021


Hon. Mary Jane McCallum
[19:10]

Therefore, honourable senators, in amendment, I move:

That Bill C-15 be not now read a third time, but that it be amended,

(a) on page 1, by replacing the long title with the following:

“An Act to implement the United Nations Declaration on the Rights of Indigenous Peoples”;

(b) in the preamble,

(i) on page 2, by replacing lines 44 and 45 with the following:

“tion with Indigenous peoples, to implement the Declaration;”,

(ii) on page 3, by replacing line 14 with the following:

“ety to implement the Declara-”;

(c) on page 4, by adding the following after line 25:

“Act Binding on Her Majesty

2.1 This Act is binding on Her Majesty in right of Canada.”;

(d) in clause 4, on page 5,

(i) by replacing lines 3 and 4 with the following:

“human rights instrument with force and effect in Canadian law;”,

(ii) by replacing line 6 with the following:

“Canada’s implementation of the Declaration in Canadian law; and

(c) provide that the Declaration informs the broad and purposive interpretation required of the rights and freedoms of — and commitments owed to — Indigenous Peoples in Canada, including those expressed in sections 25 and 35 of the Constitution Act, 1982.”;

(e) in clause 6, on page 5, by replacing lines 13 and 14 with the following:

“isters, prepare and implement an action plan to implement the Declaration.

(1.1) In consulting and cooperating with Indigenous peoples under subsection (1), the Minister and other federal ministers must do so in a meaningful way and must

(a) consult and cooperate with councils, governments and other entities that are authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982; and

(b) adopt an approach specific to each Indigenous group, community or people that respects that Indigenous group, community or people’s laws, traditions and processes.”;

(f) on page 6, by adding the following after line 11:

“Participation

6.1 In order to ensure effective and timely participation in development of the action plan under section 6, the Minister must — no later than 60 days after the day on which this Act receives royal assent — make public a process for participation in the development of the action plan and its implementation by individuals and groups including

(a) councils, governments and other entities that are authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982; and

(b) Indigenous organizations and communities.”.

Hon. Dennis Glen Patterson
[19:13]

Honourable senators, I rise today on debate of Senator McCallum’s amendments.

First, may I congratulate Senator McCallum for the work that she has done and continues to do on behalf of Indigenous peoples. I know that we don’t always agree on policy, Senator McCallum, but I respect your commitment to champion the concerns being brought to you by Indigenous leaders and rights holders, particularly from the region you represent.

I know that Senator McCallum knows my position on her amendments. I agree that there are significant changes required for this bill to achieve what it purports to do. That is, I think, a duty that we have in this chamber of sober second thought: to ask questions and be constructive critics of the legislation we are asked to review in the other place. But I think Senator McCallum also knows that my main concern about this bill is the significant lack of appropriate and meaningful consultation on it. This is something I don’t think we can ignore.

As such, it is difficult for me to support substantive changes to this bill without having heard from folks like Treaties 6, 7 and 8, the AFNQL, the Mohawk Council of Kahnawà:ke and others as to their views on this significant amendment; and that we don’t have an opportunity for this to happen because of the rush to approve this bill, according to a timetable imposed upon us.

While I cannot support the amendments for this reason, I support Senator McCallum’s push to highlight the massive gaps within this bill and to give voice to the many voices of discontent being run roughshod over by the push to pass this bill quickly and without amendment. It is disconcerting that the voices of Indigenous peoples and leaders whose territories cover Alberta, Saskatchewan, Manitoba, Ontario, Quebec and Labrador, among others, are being ignored.

In that connection I would like to read a letter received by senators this week. It’s a letter to the Prime Minister from Grand Chief Arlen Dumas on behalf of the Assembly of Manitoba Chiefs. He writes as follows:

I write you to request for you to suspend all parliamentary legislative activities on Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, so that the federal government and Parliament may urgently prioritize a response to the Tk’emlups te Secwepemc First Nation’s finding of 215 children buried at the site of the former Residential School in Kamloops, British Columbia, and to provide resources and assist First Nations with investigations at all other residential school sites.

Great political fanfare with the Assembly of First Nations and other national non-First Nation groups accompanied your government’s sponsored Bill C-15. The support from First Nations has been muted at best, with some very strong First Nations opposition to it. While the Assembly of Manitoba Chiefs did conduct a leadership forum on Bill C-15, it still has yet to take a formal position on it due to its continued focus on local responses to the COVID-19 pandemic.

Now is not the time for the Government of Canada to push through a contentious bill regarding First Nations rights in the face of the recent and devastating discovery of the mass unmarked grave of First Nations children.

First Nations leaders in Manitoba are calling on Canada to assist with finding all lost children that went to residential schools in Manitoba and to provide appropriate supports to residential school survivors. Bill C-15 does not do that.

Bill C-15 only responds to one Call to Action of the Truth and Reconciliation Commission (TRC):

Article 44: 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.

Chief Dumas goes on to say:

It does not go unnoticed that the United Nations Declaration on the Rights of Indigenous Peoples deals with genocide and human remains. Bill C-15 does not address the current horror found at the Kamloops residential school:

Article 7(2): Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.

Article 12(2): States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

While Bill C-15 is simply just a plan to make a plan, it does not meet the TRC Call to Action 43:

We call upon the federal, provincial, and territorial and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.

In context, the TRC made six (6) Calls to Action on Missing Children and Burial Information (Calls to Action 71 to 76) that Canada has not acted on at all. Bill C-15 does not address this current situation.

On behalf of the First Nations leadership in Manitoba, I ask you to work with your colleague Party Leaders in the House, in a non-partisan manner, to suspend all activities on Bill C-15, and devote that time to work with First Nations in Manitoba and all First Nations across Canada to investigate all residential school sites.

Canada’s response to the recent uncovering of genocide at residential schools has the potential to leave a lasting impact on generations to come. I call on you to do the right thing for First Nations and Canadians.

Honourable Senators, I’ll end with a letter from Treaty 6 Grand Chief Okimaw Vernon Watchmaker to the Prime Minister, dated June 4, 2021:

We request that you immediately suspend all parliamentary and legislative activities surrounding Bill C-15, in order to provide the appropriate time and space necessary to focus on the pressing issues surrounding the disturbing discovery of 215 children that died and went unreported at the former residential school in Kamloops, BC. This Bill is highly contentious, and it would be the prudent thing to do at this horrific time.

As you are likely aware, the process surrounding Bill C-15 was fundamentally flawed. This Bill does not adopt the UNDRIP, or in any way legislate the principles that UNDRlP sought to achieve. Canada informed the international community that they would fully support without qualification, this has not been the case. Moreover, Rights holders were not consulted, instead Canada utilized national organizations without mandates. Principles of Good Governance are also not being followed with Bill C-15. It is currently being expedited through a parliamentary process, the Senate was asked to do a pre-study on the Bill and will not likely be able to release a report in time for a proper debate to occur. The Senate is also being told that amendments are not being accepted at this time, which is interference in the Senate process. In addition, the Chief Justice of the Supreme Court would provide Royal Assent to the legislation, which will likely be challenged at some point in the Supreme Court. The Confederacy of Treaty 6 First Nations along with Treaty 7 and Treaty 8 First Nations rejected the Bill. At the same time, the First Nations are dealing with a pandemic that is creating very real heath concerns and deaths in our communities. These reasons alone should be sufficient to halt and reevaluate the issues with this Bill. However, a more important and recent matter needs to take precedence.

We are requesting that you instruct your departments to shift their focus from pushing this flawed Bill to providing tangible results that will assist the community of Tk’emlups te Secwepemc First Nation deal with the very real and deep trauma that exists with a find of this nature. These issues include dealing with genocide, grief, and loss, dealing with these criminal issues that continue to go unpunished. This will assist in creating a path forward for any other discoveries of this nature. We know as First Nation people that this is the tip of a very large iceberg, this is based on our oral history and teachings. We are all grieving right now and attempting to deal with this horrendous discovery that continues to open the wounds of genocide that we have been dealing with since entering into Treaty. I will point you to the Truth and Reconciliation (TRC) Calls to Action and remind you that the TRC had laid out a path for the government to follow for these types of issues. Calls to Action 71 through to 76 deal with matters that are directly related to Missing Children and Burial Information and speaks directly to murdered children, and grave sites. The Calls to Action were released in 2015 and movement has yet to be made in implementing them.

Your response and action on these issues will forever be a part of your legacy. I am requesting that you work with the Confederacy of Treaty 6 First Nations to do the right thing and truly devote your time, and resources to this matter.”

I end my comments with this advice from respected rights holders. Honourable senators, thank you. Qujannamiik.

Hon. Patti LaBoucane-Benson
[19:26]

Honourable senators, I want to thank Senator McCallum for all her hard work on this bill. I know that she brings her amendments forward with only good intentions and with a deep desire to create a better life for Indigenous peoples, and I thank her for that. I also want to thank her for bringing her eagle fan today. As a sun dancer, I know very well the power of the eagle fan and what energy it brings to this debate. It’s a reminder we are all here for the good of the people.

[Editor’s Note: Senator LaBoucane-Benson spoke in an Indigenous language.]

We need to do this with humility, compassionate kindness and respect. I thank her for that.

I want to speak specifically to the portion of the amendment that speaks to adding “implement” into the bill. I would note that article 38 of the declaration itself says:

States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.

This article recognizes that countries have many tools available to implement international human rights instruments, including a range of processes, policies and legislation. Bill C-15 proposes a legislative framework for implementing the declaration, but does not propose to be the complete implementation of the declaration itself. Seeking to describe this bill as the complete implementation of the declaration is potentially misleading and detracts from all the other initiatives, which themselves contribute to implementation of the declaration, including negotiation of treaties and other arrangements, subject-specific legislation and new or revised policies and directives. The full transformation of international treaties into domestic law is not the objective of the bill.

I would also say that with regard to the portion of the amendment that deals with binding the Crown, as I mentioned earlier, the substantive provisions of the bill articulate clear objectives on the Government of Canada and on the federal minister. Therefore, Bill C-15 in fact does bind the government to three specific obligations: One, to take measures to ensure consistency of laws with the declaration; two, to develop and implement an action plan; and three, to report annually on progress to Parliament. Therefore, a separate provision in the bill about the act being binding on the Crown is not necessary.

Finally, with regard to the portion of the amendment that deals with the force and effect in Canadian law or incorporated into Canadian law, I would note that I’ve already addressed the confusion about the purpose of this bill and we’ve heard witnesses who expressed some confusion.

I repeat that Minister Lametti confirmed in committee that this is implementing legislation, as described in clause 4(b). The purpose of the bill is to provide a framework for the implementation of the declaration, not to incorporate it directly into Canadian law. The proposed amendments would fundamentally alter the object of the bill beyond what was discussed with Indigenous partners, provinces, territories and others. Thank you.

Hon. Brian Francis
[19:30]

Honourable senators, I want to first thank Senator McCallum for her speech.

As an Indigenous man and an eagle staff carrier, I am personally offended and appalled by the earlier point of order. In my opinion, to refer to an eagle feather, which is accorded the highest respect by all First Nations, as a prop speaks to the need for immediate education of all parliamentarians on the rich and diverse cultures, traditions, histories and philosophies of First Nations, Métis and Inuit in Canada.

I also think it speaks to the critical importance of this bill, which seeks to ensure that Canada meets the minimum — not the maximum — standards for the survival, dignity and well-being of Indigenous people who, for generations, have been subjected to forced assimilation or destruction of our culture, language and our very existence.

We have the right, like any other Canadian, to have our beliefs and practices respected and accommodated, both inside and outside of this chamber. It shows leadership to apologize, and for that I thank Senator Plett. However, what we need now is change so that these situations do not continue to repeat themselves inside or outside of this chamber. One time is too many.

Now that I have gotten that off my chest, we are here today to speak to the amendment brought forward by Senator McCallum, for whom I have the utmost respect and admiration. I commend her for all the tremendous work she has done on this bill and on behalf of Indigenous people.

Like her, I share the feelings of distrust, skepticism and even fear of consecutive federal governments, both Liberal and Conservative, that have let us down time and time again. It is hard for so many to trust that Canada and parliamentarians will act honourably towards Indigenous people, but I am hopeful that we have begun a national reckoning and that Canada and Canadians will do better. Like Senator Klyne said earlier, it is time to become the Canada we want to be.

In determining the authority and scope of Bill C-15 and whether it is, in fact, implementing the UN declaration, courts will look to the actual wording of the statute to consider its purpose and intention. As contained in clause 4, the purposes of Bill C-15 are to:

(a) affirm the Declaration as a universal international human rights instrument with application in Canadian law; and

(b) provide a framework for the Government of Canada’s implementation of the Declaration.

Many of the amendments by Senator McCallum revolve around concerns with implementation of the declaration, including that the purpose of the bill be amended by replacing the word “affirm” with “implementation” to provide greater clarity. However, clause 4(b) does make it clear that the purpose of the bill is to implement the declaration. As a result, I maintain that this amendment is not needed.

The language contained in clause 4(b) indicates that the legislation serves the purpose of providing a framework for how Canada will implement the UN declaration. This position was supported by Crown-Indigenous Relations and Northern Affairs Canada in their testimony before committee on May 7, where they indicated that Bill C-15 will be used in the interpretation of Canadian law. This legislation serves the purpose of providing a framework for how that would happen in ways that can and include its use in interpreting Canadian law.

As well, Minister Bennett also confirmed that the introduction of Bill C-15 fulfills our government’s commitment to introduce legislation and to implement the declaration, establishing Bill C-262 as the floor rather than the ceiling.

In addition to language contained in the purpose section, clause 4(a) is an affirmation by Canada that the United Nations Declaration on the Rights of Indigenous Peoples has application in Canadian law. However, this statement is not new because, as we know, the UN declaration does have application in Canada. Presently, it is used as an interpretation tool by the courts, but the courts have lots of discretion to decide how they will apply the UN declaration. That has resulted in rulings that are not in line with the minimum rights of Indigenous people.

This bill will help us begin to correct that. The ratification of the statute provides further weight to the UN declaration and how the courts can use it, not only for interpretation but also to find substantive obligations and rights.

If we consider the language of clause 4(b), this wording would be very persuasive to a court to find that Canada intends to implement the UN declaration through Bill C-15. The court will then look at other clauses of Bill C-15 to determine what that implementation will look like. This is the action plan. It is thus important that the action plan, as contained in Bill C-15, is carefully reviewed, as it will be relied upon by the courts to interpret Canada’s commitment to the implementation of the UN declaration.

This bill is not perfect. None ever is. However, I am convinced that we need to adopt Bill C-15 without delay. It would be shameful for this institution to repeat what happened with Bill C-262.

The Aboriginal Peoples Committee heard from numerous witnesses during our pre-study of Bill C-15 who urged us to pass the bill without amendments because of the fear that it would be defeated. Among them were Indigenous leaders and rights holders, such as the Assembly of First Nations, the Métis National Council, ITK, Nunavut Tunngavik Inc., the Grand Council of the Crees, the Dene Nation, the First Nations Leadership Council of British Columbia, and Indigenous academics such as Brenda Gunn, Val Napoleon, Pamela Palmater, Dr. Sheryl Lightfoot, Naiomi Mettalic and former TRC commissioner, Dr. Wilton Littlechild. As a rights holder, I stand in support of this view. This is an historic opportunity to move forward in the right direction. It will not be without problems, but it is long overdue.

I will not go any further into why I am not supportive of the amendments. Indigenous people, like non-Indigenous people, do not always agree on policy or other matters. This is one example. There is a diversity of opinions. We can respectfully agree to disagree on the amendment. Thank you. Wela’lioq.

The Hon. the Speaker
[19:37]

Those in favour of the motion who are in the Senate Chamber will please say “yea.”

Those opposed to the motion who are in the Senate Chamber will please say “nay.”

The Hon. the Speaker
[19:37]

In my opinion, the “nays” have it. I see one senator rising. No?

Do I hear any senator attending virtually who wishes to have a standing vote?

Senator McCallum
[19:38]

I do.

The Hon. the Speaker
[19:38]

We need two senators, one in the chamber and one virtually. I see a senator rising.

The Hon. the Speaker
[19:38]

Is there agreement on the bell?

Senator LaBoucane-Benson
[19:38]

Fifteen minutes.

Hon. Donald Neil Plett (Leader of the Opposition)
[19:38]

Your Honour, it has to be two senators in the chamber who agree to the length of the bell.

The Hon. the Speaker
[19:38]

We need leave from the chamber to shorten the bell to 15 minutes. If you are opposed to 15 minutes, please say “no.”

The bells will ring for 15 minutes. The vote will take place at 7:53. Call in the senators.

The Hon. the Speaker
[20:05]

Honourable senators, we resume debate on the main motion.

Hon. Pat Duncan
[20:05]

I move the adjournment of the debate.