I have a question. Senator Carignan, as you may know, Article 46 of UNDRIP is one that has caused serious concern for many First Nations people across this country. This article in effect states that nothing in this declaration may:
. . . be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States. . . .
Are you concerned about increasing provincial involvement, especially involvement of a level of government that should be considered invalid in this matter, as it falls outside of the treaty relationship that First Nations hold directly with the Crown?
I’m curious to know what you envision would be the negative impacts of your amendment with regard to further hampering Indigenous self-government, a constitutionally protected right that should transcend provincial interference. Thank you.
The idea is to consult the provinces and ensure that we are targeting federal laws, not provincial ones. I do not see anything that goes against Indigenous autonomy. This is simply a matter of respecting provincial jurisdictions and making sure that the provinces are considered as partners just like the other organizations.
Honourable senators, I want to explain why I am suggesting that we reject the three amendments proposed by Senator Carignan. I will talk about them in the same order as he did.
However, before I do that, I would like to remind you that Bill C-15 has two very different goals. The first is to add the principles set out in the UN Declaration on the Rights of Indigenous Peoples to the rules of interpretation of Canadian law. The second is to impose an action plan on the government for the review of federal laws.
The first proposed amendment is an addition to the preamble, which reads:
Whereas implementation of the Declaration must respect the respective jurisdictions of the Government of Canada and the governments of the provinces and territories;
In other words, it deals with the second purpose of Bill C-15, the action plan.
Bill C-15 imposes an action plan only for the federal government. Of course, the bill cannot legally impose such an action plan on provinces. The situation of the territories is different because their authority is derived from federal legislation. Of course, changes to territorial legislation to better align with the declaration will trigger consultation obligations with Indigenous peoples, and logically, the territorial governments.
For the provinces, as the Constitution Act, 1867 states, Bill C-15 must respect the division of powers.
Let me refer to section 91 of the Constitution Act, 1867, which states:
It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces . . . .
In other words, Parliament may not adopt laws that touch on subjects falling under the jurisdiction of the provinces.
In a complementary way, section 92 of the same constitutional document provides that provinces have exclusive jurisdiction in making laws relating to certain subjects:
In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated . . . .
Then there is a famous list.
In sum, it is clear that Parliament may not make laws on behalf of provinces or on matters falling under provincial jurisdiction and vice versa. That is why section 5 of the act establishes an action plan for ensuring that federal laws, and only those federal laws, are consistent with the principles of UNDRIP. In other words, the action plan is drafted to apply only to the laws adopted by Parliament on the subjects that are assigned to that body.
The second amendment proposed by Senator Carignan is to replace “Canadian law” with “laws of Canada” in section 4(a) of Bill C-15. This amendment is designed to address the first purpose of Bill C-15, which is found at section 4(a) of the bill, which, as I said previously, is to uphold current case law and formalize the use of the United Nations declaration as an interpretive tool guiding courts in the interpretation and evolution of Canadian law.
In a letter sent earlier today by the Minister of Justice to all members of the Senate, he wrote:
. . . the existing and well-established legal principle that international human rights instruments, like the UN Declaration, can be used to help interpret and apply Canadian laws. This principle applies to the interpretation of federal laws. It also applies to interpretation of the Constitution of Canada and provincial laws.
By replacing “Canadian law” with the words “laws of Canada” at clause 4(a), Senator Carignan’s amendment would render that clause factually inaccurate and inconsistent with the current practice of using international instruments, including UNDRIP, to aid in the interpretation of all Canadian law, including the Constitution of Canada, federal laws, provincial laws and the common law, which includes, incidentally, federal common law.
As you know, a significant portion of Canadian law, even at the federal level, is not written in statutes. It is based on customary law — notably in the area of Maritime law — routinely applied by the Federal Court. Senator Carignan’s amendment would change the current statement of fact found in clause 4(a) to affirm the declaration as a universal international human rights instrument with application to federal laws only, when, in fact, it is already used much more broadly to inform judgments on treaty rights protected by section 35 of the Constitution Act, 1982.
As the Supreme Court of Canada explained in Baker v. Canada (Minister of Citizenship and Immigration):
. . . the values reflected in international human rights law may help inform the contextual approach to statutory interpretation . . .
The important role of international human rights law as an aid in interpreting domestic law has also been emphasized in other common law countries . . . . It is also a critical influence on the interpretation of the scope of the rights included in the Charter.
Trying to limit it to federal laws will be to limit the current applications of these principles. Specific to UNDRIP, in Nunatukavut Community Council Inc. v. Canada (Attorney General), the Federal Court found that UNDRIP could be used as a tool to inform the interpretation of domestic laws:
. . . UNDRIP may be used to inform the interpretation of domestic law. As Justice L’Heureux Dubé stated in Baker, values reflected in international instruments, while not having the force of law, may be used to inform the contextual approach to statutory interpretation and judicial review . . . .
I now turn my attention to the third change proposed by Senator Carignan. It deals with section 6, a provision defining the action plan. It would require the federal government to add provinces in the consultation process with Indigenous peoples on the design of the action plan to achieve the objectives of the UNDRIP principles in federal law. Senator Carignan is right to stress the importance of the relationship the federal government and the provinces have, which is central to our federalism, but Bill C-15’s focus is on a separate relationship also of great importance, the relationship between the federal government and Indigenous peoples.
As the APPA Committee report on Bill C-15 noted, there is:
. . . a lack of a clear, inclusive, and defined process for co‑developing legislation at the national level. . . .
Going forward, the committee underscores the need for consultation to be clear, substantial and understandable. All Rights Holders, including Treaty Rights Holders and interested Indigenous communities must have the opportunity to be involved from the start.
Bill C-15 aims to put in place a clear, inclusive and defined process in regard to federal law-making, and that process will involve the federal government and Indigenous peoples.
What Senator Carignan is asking is that the federal government also involve the provinces in the federal government’s consultations with Indigenous peoples in connection with the action plan. By adding a third party, the provinces, it that will alter the relationship between the federal government and Indigenous peoples that Bill C-15 aims to rebuild. This will, of course, complicate the trust-building exercise that the bill seeks to implement but also raises the question of whether the provinces will be required to involve the federal government in their consultations with Indigenous peoples if and when they decide to adopt an action plan to incorporate the UNDRIP principles into provincial law.
As you know, the Province of British Columbia has already implemented UNDRIP principles in the laws of B.C., and this without any federal involvement. With great respect, I don’t think that the third change proposed by Senator Carignan will be helpful but will only complicate the process we are trying to build. In addition, I think it contradicts the first change he is proposing, where he wants to reaffirm the importance of recognizing the separation of power.
The action plan contemplated in clause 6 of Bill C-15 does not necessarily exclude provinces from future consultations that precede federal legislative action, especially in areas of joint concern. Indeed, on lawmaking matters that may affect provinces, the federal government will continue to consult with provinces as it currently does in the spirit of a good cooperative federalism. That consultation process is not negated by Bill C-15, but the consultation process referred to in clause 6 will only lead to a more complex framework to guide future collaboration between the federal government and Indigenous peoples to achieve the objective of UNDRIP.
To sum up, I repeat that what one part of Bill C-15 aims to do is to establish an action plan regarding the federal government’s duties toward and the relationship with the Indigenous peoples of Canada and not the provincial duties toward the same Indigenous peoples. Provinces may choose to establish a similar plan in connection with provincial laws, regulation and services they provide. As an aside, I am hopeful that the federal Parliament’s adoption of Bill C-15 will inspire provinces to adopt similar legislation in the near future in demonstrations of our entire country’s commitment to reconciliation.
In conclusion, the amendment before us doesn’t seem to address any real problems and doesn’t deserve to be passed. Some might wonder if this isn’t another strategy to return the bill to the House of Commons and delay, or even prevent, as in 2019, the implementation of the United Nations Declaration on the Rights of Indigenous Peoples into Canadian law. For these reasons, I’ll be voting against the amendment and I invite you to do the same. Thank you, meegwetch.
Hon. Marc Gold (Government Representative in the Senate)
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Honourable senators, I rise to respond to the amendment proposed by Senator Carignan and, respectfully, I urge colleagues to vote against this amendment.
My remarks may be somewhat technical, and I thank you in advance for your patience, but it’s important to address these issues clearly and directly.
My argument is simply that at its best, the proposed amendment is in part confusing and badly drafted and in other parts completely unnecessary. At its worst, it would change well-settled law governing the role of international instruments like the declaration in the interpretation of Canadian law. This would represent a significant and regressive step backwards on the path toward reconciliation.
Let me begin by setting the table at a somewhat broader level in order to explain why I believe Senator Carignan’s proposal is ill-considered, and why in the government’s view, there is no ambiguity, discrepancy, conflict or lack of clarity within Bill C-15. I apologize in advance; I will probably follow the well-argued tracks that Senator Dalphond has already laid out.
Let me be very clear at the beginning: Bill C-15 does not propose to transform the declaration itself into a Canadian law with legal applications. Rather, it provides a framework for the Government of Canada’s implementation of the declaration. If you will, it’s a starting block, not the finish line.
As Senator Dalphond correctly points out, clause 4 of Bill C-15 establishes the two central purposes of Bill C-15. The first purpose, the one that is set out in clause 4(a) and the primary focus of Senator Carignan’s amendment, reads as follows. The purpose is to “affirm the Declaration as a universal international human rights instrument with application in Canadian law.”
For clarity in my remarks, let me refer to this as purpose 4(a), or the interpretive purpose of the bill. As I will explain further, and as Senator Dalphond correctly pointed out, purpose 4(a) does not relate to the implementation of UNDRIP or the process contemplated by the action plan. Rather, purpose 4(a) relates to the application of UNDRIP as a source of interpretation of Canadian law. It is essentially an affirmation of existing law. Indeed, in this respect, Bill C-15 does not create any new obligation or new state of law deriving from clause 4(a).
The second purpose of Bill C-15 is set out in clause 4(b), which is to “provide a framework for the Government of Canada’s implementation of the Declaration.”
For clarity in my remarks, let me refer to this as purpose 4(b), or the implementation purpose. Purpose 4(b) is at the heart of Bill C-15. It is with purpose 4(b) that new obligations and law are being created by obliging the federal government to ensure that its federal laws are consistent with the declaration, and this is to be achieved through the development and implementation of the action plan.
Colleagues, it’s very important to keep the distinction between these two purposes in mind: purpose 4(a), interpretation, on the one hand; and purpose 4(b), implementation, on the other. That’s the key to understand why different terms are used in different sections of Bill C-15.
Honourable senators, there are very good, sound policy reasons that explain why the phrase, or the terms rather, “Canadian law,” and in French “droit Canadien,” are found in purpose 4(a), while the terms “laws of Canada,” and in French “lois federales,” are found in the language of the main obligation created by purpose 4(b) and in clause 5 of the bill.
The former deals with the state of existing law regarding the role of international instruments in Canadian law, while the latter deals with the limitations on Parliament’s legislative jurisdiction to implement international instruments such as the declaration into law.
To provide you with a full understanding of the issue, which at first blush may appear somewhat complex, let me begin by addressing more fully the language used in the clauses of Bill C-15 that implement purpose 4(b) to provide a framework for the Government of Canada’s implementation of the declaration. As I already mentioned, clauses 5 to 7 create obligations upon the government that are tied to this purpose 4(b) implementation.
Indeed, in order to implement purpose 4(b), clauses 5 to 7 create specific obligations on the Government of Canada to take all measures necessary to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples and to prepare and implement an action plan to achieve the objectives of the declaration.
The scope, intent and effect of obligations created by section 4(b) are entirely limited to federal legislation and, by extension, to areas within federal jurisdiction. As all senators will appreciate, this is the clear intent of the legislation as stated by the minister, as stated by the Senate sponsor, and as I’m repeating here today and as did Senator Dalphond.
Of particular interest to the discussion around Senator Carignan’s proposed changes to clause 4(a), consider the language of clause 5. It reads as follows:
The Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.
As used in Bill C-15, the Government of Canada understands that the phrases “the laws of Canada” means federal legislation passed by the Parliament of Canada. That’s the clear intent of the legislation. The government gave very careful consideration on whether or not to use the phrase “laws of Canada” in clause 5. In the end, “laws of Canada” was retained because in this context, especially when it’s twinned with the use of the phrase “lois fédérales” in the French, it clearly, unambiguously, without any question denotes laws within federal jurisdiction and only laws within federal jurisdiction. By the way, this was also the combination of language that best built on what was discussed with Indigenous partners during the consultation.
Indeed, this terminology is already reflected in several examples of major federal statutes that refer to “laws of Canada” as a concept distinct from laws of a province. This includes, for example, the Income Tax Act. Other examples include the Criminal Code of Canada and the Excise Tax Act, where “laws of Canada” is translated into “lois fédérales.”
Colleagues, it is true that the phrase “laws of Canada” is rendered in French somewhat inconsistently across some other federal statutes. It is sometimes translated as “lois du Canada,“ ”lois fédérales“ or ”législations fédérales.”
It’s nonetheless sufficiently clear in the context of Bill C-15 that the scope of the provision covers laws within the jurisdiction of Parliament. If anything, the French version of the federal statutes that employ the term “lois fédérales,” like the French version of Bill C-15, clause 5, make it crystal clear that the “laws of Canada” refers to laws passed by the Parliament of Canada.
Any reasonable reading of these two versions taken together necessarily leads to the conclusion that, consistent with the clear and expressed intent of Bill C-15, the legislation only applies to federal statutes and not to provincial statutes.
Ultimately, colleagues, as both the French and English versions of a statute are equally authoritative in Canadian law, and since principles of statutory interpretation provide that the common meaning should be preferred, there is no inconsistency between the English and French and, therefore, no lack of clarity as to what was intended.
Indeed, even for the sake of argument, if we were to assume that there was some ambiguity or conflict, which the government insists there is not, if you apply this well-established principle of bilingual statutory interpretation outlined by the Supreme Court of Canada, these principles would inevitably lead one to conclude that both versions of Bill C-15 refer to laws enacted by the federal Parliament and not by the provinces.
I won’t go through the rules of interpretation, except to point out that they are designed to resolve inconsistencies in the language by finding the common meaning to both, which in most cases, will be the narrower of the two terms.
Now, Senator Carignan is not proposing to change the language in clause 5 or the language in “Purpose,” subclause 4(b). There is no change to “laws of Canada;” there is no change to “lois fédérales.”
So why, you might properly ask, am I spending so much time talking about this and how it is clearly limited to federal legislation? And if the language of clause 5 is so crystal clear, why is the same language not used in the words of subclause 4(a), as Senator Carignan would propose in his amendment?
Honourable senators, I took this time — and again, I thank you for your indulgence — to underscore that every word in Bill C-15 was painstakingly considered. I did so to explain that it’s crucial why the language used in subclause 4(a), “Canadian law” as opposed to clause 5’s reference to the “laws of Canada,” must not be altered.
Now I turn — you will say “finally” — to the scope, intent and effect of subclause 4(a), the target or an aspect, so to speak, of Senator Carignan’s amendment.
As you know, he would propose to replace the words “Canadian law” with “the laws of Canada.” It’s the same language we just considered in clause 5.
Colleagues, perhaps this was an oversight on his part, but Senator Carignan inconsistently, in my humble opinion — and respectfully — does not propose to change these terms that are used in other clauses of Bill C-15 directly tied to subclause 4(a). For example, subclause 4(a) is directly tied to the preamble that states, “Whereas the declaration is affirmed as a source for the interpretation of Canadian law . . . .”
Clause 4(a) is also tied to clause 2(3), which states, “Nothing in this Act is to be construed as delaying the application of the Declaration in Canadian law.”
So although these two clauses deal with the same principle as subclause 4(a), Senator Carignan does not propose to restrain the language to “laws of Canada” and “lois fédérales.”
This makes his proposal inherently confusing. It adds new layers of inconsistency that are patently ill-designed from a drafting perspective. Definitional confusion within any bill is something to be avoided at all cost.
But respectfully, this is not the worst part of the proposed amendment. As mentioned, subclause 4(a) and the other clauses linked to it and that use the expression “Canadian law” are and need to be distinguished entirely from the implementation purposes of clause 4(b). Subclause 4(a) does not relate to the implementation of UNDRIP.
All that subclause 4(a) proposes — as Senator Dalphond correctly pointed out — is to recognize the existing and well-established legal principle that international human rights instruments, like the declaration, can be used to help interpret and apply Canadian laws. This includes not only federal laws but also provincial laws and the Constitution. It is very important to understanding the differences in language that we see throughout Bill C-15.
So let me repeat this point: It is the existing law in Canada — well established — that international human rights instruments, like the declaration, can be used — and are used — to help interpret and apply all Canadian law, including federal law, constitutional law and provincial law.
Let me be very clear: This clause does not give the declaration direct legal effect beyond its existing role in interpreting Canadian law. In fact, as I mentioned, the declaration is already being used this way, regardless of the presence of subclause 4(a) in this bill.
A purpose clause, like subclause 4(a), is used to describe the objectives of the bill but, as here, it does not set out any specific obligation; it simply draws attention to the declaration as an interpretive source in Canadian law, confirming the existing state of the law — Senator Dalphond mentioned the Baker case, a leading Supreme Court case, which stated the well-established principle that “. . . the values reflected in international human rights law may help inform the contextual approach to statutory interpretation . . . .”
Similarly, in the 2007 Hape decision, the Supreme Court stated:
. . . it is a well-established principle of statutory interpretation that legislation will be presumed to conform to international law . . . .
The presumption of conformity is based on the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result. . . .
Subclause 4(a) does nothing more and nothing less than to underscore this legal reality, which is why the drafters carefully chose the words “Canadian law” or “droit canadien“ in this part.
This was a point that was very clearly confirmed by the Minister of Justice and the Attorney General during the hearings on Bill C-15 at the Standing Senate Committee on Aboriginal Peoples and in the letter to which reference was made in my colleague’s earlier intervention. But let me quote from the transcript at length to put the minister’s words at the hearing on the record. Our colleague Senator Coyle asked the minister the following question:
Bill C-15 states that the declaration is affirmed as a source for the interpretation of Canadian law, not federal law as created by the Parliament of Canada. This is one specific change that New Brunswick wants to see before Bill C-15 is given Royal Assent.
Perhaps it’s for Minister Lametti to talk about Canadian law versus federal law, and the implications for the provinces. . . .
Minister Lametti answered with the following:
Thank you, Senator Coyle, for the question. It’s an important one because there is a fundamental misunderstanding . . .
We have acted according to the general principles of the way Canada implements treaties that are signed at international law. The implementation of this treaty — through the action plan and any changes that are made — will apply to the laws of Canada, federal law, and then provinces have to implement in areas of their jurisdiction, as British Columbia has already done.
When the previous Conservative government adopted the declaration, it had interpretive force in Canadian law. That’s what the minister in New Brunswick is referring to. It already has that interpretive force, because it was adopted by the government, as do any other international documents, particularly UN documents, to which Canada accedes. They have interpretive force.
So it already has interpretive force in front of Canadian tribunals at all levels of society and government in Canada. That is already the case.
This implementation act will be moving toward implementing the law with respect to federal laws, and then we would encourage provinces and territories to do likewise in areas of their jurisdiction.
Honourable senators, while this provision does not direct courts to consider the declaration or even require them to do so, it does reflect the Government of Canada’s view that the declaration can be appropriately used as an interpretive tool. This is simply an affirmation of the existing state of the law as set out by our courts. This affirmation also serves to emphasize to the Government of Canada departments and officials that the declaration should be among the considerations that inform government approaches to issues affecting Indigenous peoples and their rights. Over time, the declaration may be used more often to help inform the interpretation and application of Canadian law, though that remains to be seen and is in the hands of the judiciary. However, Bill C-15 does not change the general rules on how international instruments may be used by domestic courts.
Honourable senators, thank you again for your indulgence. I hope I have explained adequately why the words “laws of Canada” are used in clause 5, whereas the words “Canadian law” appear in subclause 4(a), as well as clause 2(3) and the preamble of Bill-C15.
As used in Bill C-15, the expression “laws of Canada” is used specifically in the context of the requirement derived from clause 4(b) to align federal legislation passed by the Parliament of Canada with the UN declaration. The use of “laws of Canada” is deliberate and is different from the more general language of “Canadian law” used in clause 4(a), clause 2(3) and the preamble.
To give you one last example of how the declaration has been used to help interpret and apply Canadian law since Canada became a signatory in 2016. Let me cite one case. Just last year, the Court of Queen’s Bench of Alberta in TA v. Alberta (Children’s Services), 2020 confirmed the declaration’s interpretative value in a case involving Alberta’s Child, Youth and Family Enhancement Act. Reaffirming the principle stated by the Supreme Court of Canada in Baker, which I noted above, the Court of Queen’s Bench of Alberta said, “Documents such as UNDRIP may be used to interpret statutory and common law obligations that exist independently . . . .”
Honourable senators, the government is concerned about the unintended consequences of this amendment in confusing matters when it comes to the application of UNDRIP as an interpretive tool. However, the problem of the proposed amendment runs much deeper than the confusion it would introduce. If accepted, this amendment would affect a material change in the state of Canadian law and pose a real risk of limiting the status of UNDRIP relative to the situation pre-Bill C-15.
Taken at face value, the proposed change in clause 4(a) would narrow the established legal principle that an international instrument like UNDRIP is relevant to the interpretation of Canadian laws generally. Whether or not this is Senator Carignan’s intent, his amendment could very well cause a regression, a step backward, for the status of UNDRIP as an interpretive tool in Canadian law. This, in turn, colleagues, is a step backward in our painful but necessary path to reconciliation.
Finally, let me add for the record that the term “Canadian law” in clause 4(a) was also used for the same purpose in Bill C-262. I say this because, over time, these words have been approved four times by parliamentary committees, twice in the House and twice in the Senate. At the eleventh hour, so close to taking this historic step in the process of reconciliation, now is not the time to second-guess four committee processes and the clear intent of the legislation.
Senator Carignan also proposes to include new language in the preamble to Bill C-15, specifically prescribing that implementation of the declaration “. . . must respect the respective jurisdictions of the Government of Canada and the governments of the provinces and territories.”
Thank you, Senator Dalphond for referring to sections 91 and 92 of the Constitution Act, 1867. We both show our age in terms of how we would describe the Constitution.
Colleagues, this amendment simply states the obvious. Like all legislation, Bill C-15 is subject to the Canadian Constitution, and in particular, the distribution and division of powers. This bill does not — indeed, it could not — authorize the federal government to impede areas of provincial jurisdiction. As a result, this wording is entirely unnecessary, and an unnecessary amendment should not stand in the way of this legislation from passing.
Provincial, territorial and municipal governments each have the ability to establish their own approaches contributing to the implementation of the declaration by taking various measures that fall within their areas of authority. The Government of Canada welcomes opportunities to work cooperatively with these governments, Indigenous peoples and other sectors of society toward achieving the objectives of the declaration.
Senator Carignan also proposes to incorporate a new clause whereby, in preparing the action plan, the minister would consult with the provinces and afford them the opportunity to provide observations. Honourable senators, the bill already references cooperation with provinces, territories and other sectors of society as part of implementing the declaration. The preamble explicitly notes that the federal government “. . . welcomes opportunities to work cooperatively with those governments.”
While this acknowledgment is not specific to the development of the action plan, nothing in the bill precludes such a dialogue, and witnesses indicated that discussions between federal, provincial and territorial governments would be part of the ongoing work associated with implementing the declaration and pursuing reconciliation.
We also know, as described in the What We Learned report, over the course of engagement leading up to the induction of the bill, a number of meetings between federal, provincial and territorial officials and ministers took place. Several of these included Indigenous leaders and participants.
In keeping with the bill and federal practice, more generally, in the area of shared federal, provincial and territorial interest, this type of dialogue and outreach would be expected to continue moving forward. In that spirit, I can formally indicate today, in this chamber, that the Government of Canada is committed to working with provinces and territories on the development of the action plan following the passage of Bill C-15.
Furthermore, colleagues, and with respect, the language of the proposed amendment is fundamentally flawed because it refers only to provinces with no references to territories or other potentially interested sectors of society, such as those identified in the preamble, like municipal governments.
Honourable senators, let me reiterate what was said by the minister and Senator LaBoucane-Benson. Bill C-15 is focused on federal laws and actions, and it does not impose obligations on provincial or territorial governments. Clauses 3, 5, 6 and 7, as well as clause 4(b), speak specifically to the roles and responsibilities of the federal government and/or those of federal ministers. The preamble of Bill C-15 already recognizes explicitly that provincial, territorial, municipal and Indigenous governments would continue to take action that can contribute to the implementation of the declaration within their own areas of authority.
The goal is not to get in the way of good ideas and effective local action but to look for opportunities to work collaboratively on shared priorities in ways that are complementary. Over time, any changes required to federal laws to better align with the declaration will be pursued collaboratively and through existing policy, legal and parliamentary processes.
That means that we must continue to work together in areas of common interest and concern — both with our Indigenous partners and the provincial and territorial governments, as well as with other relevant stakeholders. This approach would apply to all federal legislation developed in collaboration with the provinces and territories.
In short, this means that we will all come back to this chamber to debate the details of implementing the declaration throughout the legislative process.
Colleagues, Bill C-15 itself will not change any federal laws overnight nor does it purport to displace existing processes and mechanisms for cooperation. What it will do is encourage the use of the declaration to inform how the Government of Canada approaches such existing processes and help build on them to further reconciliation. It bears repeating that the bill does not impose legal obligations on provincial governments.
Honourable senators, finally, there have been questions raised — Senator Carignan alluded to it in his remarks — about correspondence between some premiers and the federal government regarding Bill C-15 in the normal course, as it was, of the respectful and collaborative federal and provincial relationship. I will briefly respond. I’ll share some of the basic points that have been made to address these concerns to reassure counterparts and which you will find reflective of the position that the government has taken throughout this legislative process.
First, the government has reiterated that Bill C-15 takes into account discussions held with premiers during federal, provincial and territorial meetings, including, as reflected in the addition of new preambular paragraphs, recognizing that the provincial, territorial and municipal governments each have the possibility to establish their own approaches to contribute to the implementation of the declaration and to welcome opportunities to work cooperatively going forward.
Second, on the issue of scope, the government made it clear to the premiers that the Government of Canada has repeatedly stated that the obligations in the legislation relate specifically to aligning federal laws and actions with the declaration. The government will continue to use future opportunities, such as I’m using here today, to underline this message.
Third, the government made it clear to the premiers that the Government of Canada has continued to clarify messaging relating to the interaction of the declaration with the law and the Constitution of Canada, and that the government has noted, as I did here today, that Bill C-15 does not transform the declaration into a federal law or override existing law. It is rather intended to recognize the role of the declaration in interpreting Canadian law as courts and tribunals have already done and to help provide the supporting structure for federal efforts to implement the declaration going forward.
Fourth, as it pertains to free, prior and informed consent, the government has clearly reiterated to the premiers that decision making with respect to infrastructure or resource projects continues and will continue to be governed by the relevant legal and policy regimes, and that the proposed legislation and any implementation measures identified as part of the development of the action plan would apply only to federal areas of jurisdiction.
To conclude — a pause for the sigh of relief — the proposed amendment is, at one and the same time, poorly drafted, unnecessary, redundant and very much ill-advised at its core. At best, it would introduce unnecessary and dangerous confusion into the law, but at worst, by changing the existing law surrounding the role of international instruments and the interpretation of Canadian law, it would represent a regressive step backwards on the path to reconciliation.
Honourable senators, for all of the reasons I have outlined, I urge you to oppose this amendment so we can finally get Bill C-15 to the finish line. Thank you very much for your indulgence.
Thank you for that, leader. I don’t think I heard this in your presentation, but my question is about 4(a) that you mentioned was in both Bill C-262 and Bill C-15. I don’t think you mentioned that the government actually moved the placement of that sentence in Bill C-15 into the purpose of the bill and out of the operational section of the bill, which is where it was in Bill C-262. Do you view that as another purposeful move to make sure that there is no confusion about what was intended by those words?
Thank you for your question. You’re right, I didn’t refer to that specifically in my remarks. When the government took responsibility for this as a government bill, it listened to the concerns that people were raising about the bill from all sectors and quarters of this country and did its very best. I believe the government succeeded in making it very clear that there was a real difference between its function as an interpretive tool and the process of implementation, which is restricted to areas of federal jurisdiction.
Thank you for that. I wonder if you would agree — at the risk of being a bit thin-skinned — with the legal experts, two of the highest legal scholars in the country and a retired Supreme Court justice, who provided testimony to the committee that the placement of the words in 4(a) in Bill C-262 had a high probability of causing legal chaos. It was for that reason that a number of us did what we felt we needed to do, using the tools that are available in this chamber, in order for us all not to make a big mistake. I wonder if you would agree that maybe it’s time to stop talking about the shame of Bill C-262, which we heard today and we’ve heard multiple times from people in this chamber, and we focus on this particular bill.
I totally agree, senator, that our focus should be on this bill as it is. I think that the hearings that the committee held were extensive, balanced and fruitful. I’m delighted that we’ve reached this place where we can focus on the bill as it is written, as it is before us and as it was passed in the other place, and that we can at least approach our final debate and vote on this bill.
Would Senator Gold agree to take a question? Senator Gold, in your long speech you talked about consultations with the provinces. Three days ago, on June 12, La Presse reported that six provinces, Quebec, Ontario, Alberta, Saskatchewan, Manitoba and New Brunswick, were calling for major changes to be made to this bill.
They wrote to the Prime Minister, and I will quote from that letter, as follows:
To date, your approach to passing Bill C-15 is contrary to the principles of cooperative federalism, which require meaningful and substantial cooperation with the provinces.
If there were indeed consultations, are you able to tell me whether the majority of the provinces are in favour of Bill C-15?
Thank you for the question. The letter you’re referring to was sent to the Prime Minister. It was apparently leaked and published in La Presse. The government’s position is very clear. First, the bill will only have legal implications in areas of federal jurisdiction.
Second, as I said at the end of my speech about the government’s response to the six premiers’ concerns, there were consultations, discussion and a commitment to the federal and provincial ministers and officials. There is no consensus or unanimity for such a bill, which is normal in Canada. However, the Government of Canada believes that the consultations and discussions with the premiers helped them understand the scope, objective and importance of this bill.
On the contrary, and with all due respect, we are here to represent the interests of our regions and our provinces within a federal institution, that is to say, to ensure that the bills we are seized with and any public policies not only fairly consider the interests of a province, region or stakeholder, but also reflect the diversity and the interests of all Canadians.
As I mentioned in my speech — which might have been too long, but I was trying to be very clear — I cannot support this amendment. It goes against the very objective of the bill. It would represent a step backwards for principles that are well established in Canadian law. Ultimately, this amendment goes against the interests of all Canadians, both Indigenous and non-Indigenous. We are finally moving forward on the path to reconciliation, and this represents an important step not only for the well-being of all of us in this chamber, but also for the well-being of our children and grandchildren.
I will repeat my question: If you are saying that this bill applies only to federal institutions, but six provinces, so the majority of provinces, are asking that this be included in the bill, would you vote in favour of Senator Carignan’s amendment?
You are saying that this only affects federal laws. The United Nations Declaration on the Rights of Indigenous Peoples affects culture, education and natural resources. How can you say that it only affects federal laws when it also affects areas under provincial jurisdiction and the provinces have not been consulted? Unless they were lying, six premiers wrote a letter saying that they had not been consulted. Since they were not consulted on Bill C-15, don’t you think they are now worried that they will not be consulted when we address issues that are related to their jurisdictions?
Thank you for the question, for presenting the amendment and for raising this issue because it is an important one. It gives me an opportunity to say that, with regard to the implementation of this bill, meaning the federal government’s obligations to ensure that there is a process for determining whether federal laws are consistent with UNDRIP, we are talking about an obligation that applies solely and exclusively to an area of federal jurisdiction.
Honourable senator, your amendment addresses the matter of interpreting an international instrument, such as UNDRIP, but Canada has signed a lot of treaties and instruments. As you know since you are a jurist, in every case, it has been well established in the case law that, when interpreting and applying provincial, municipal, federal or constitutional legislation in the case of an international instrument that has been accepted and that Canada has ratified or adopted, we need to consider how the legal experts who examine these laws interpret them. We are not obligated to change provincial, federal or constitutional laws. We simply need to take into consideration the other international obligations in order to determine whether we are acting in a way that is consistent with them and whether we are abiding by them. That is all. I gave an example from the case law on that, which was very clear.
Also, as British Columbia has reminded us — and the federal government wishes the other provinces would respond to the invitation — it is up to the provinces to determine whether they want to put such a process in place, in Quebec or elsewhere, to review their legislation in order to check if these laws could be improved to be more consistent with the declaration.
The provinces can say yes, no or maybe; it’s up to them to decide. There are premiers who have their reasons for refusing. I don’t understand their reasons, but I am not part of the discussions with the Prime Minister — excuse me, I would just like to finish — but some of them do not agree. Welcome to Canadian federalism, that is exactly it.
Federal laws that affect culture, education and natural resources. Why not consult the provinces? Why are you afraid to include that in a bill, to consult the provinces and give them the opportunity to express their opinions and comments? Why would you oppose that?
With all due respect, esteemed colleague, I stressed that the government is open to and is in fact already engaging in consultation and discussion with the provinces and territories as part of the action plan development process.
As to your amendment, senator, it’s neither necessary nor desirable to make amendments to this bill in this chamber. It’s really not necessary, and, more importantly, it could delay the bill. That would be bad for Canadians. That’s why I most respectfully oppose the amendment.
I doubt the premiers would agree with your assertion that it’s not necessary, because they wrote a letter before Bill C-15 was introduced stating that they had not been consulted. Do you suppose they take comfort in your statement that an amendment is not necessary? It was not necessary, so they were not consulted on Bill C-15. Now you are saying that an amendment is not necessary and that they need not worry because they will be consulted about the action plan. That’s not reassuring.
Thank you for the question. I don’t think my role is to reassure the premiers or to be their psychologist. I am here, we are here, to legislate in the interests of Canadians.
With respect to Bill C-15, the government is confident that this bill is a good bill and that it represents an important and long overdue response to the Truth and Reconciliation Commission’s call to action. Now is the time to vote on this bill, not amend it.
What I meant to say, but did not make clear, is that I personally don’t know their motives. Their letter to the Prime Minister was leaked to La Presse, and that’s how we found out about it. The premiers’ message was loud and clear. As I tried to say at the end of my speech, I outlined the government’s position regarding the premiers’ objections.
In my view, the government’s responses show that it is open to working together and that it has a clear position on the impact and repercussions of this bill on provincial jurisdictions. It’s up to this chamber to decide whether the government is right or wrong.
I rise today to speak in support of Senator Carignan’s proposed amendment to Bill C-15.
Firstly, I would hope that partisanship and the rush to blindly accept legislation from the other place will not be impediments to improving this bill, in the spirit that should always guide a responsible federal government.
I would even add that in order for the provisions of Bill C-15 to produce results quickly in Canada, it is essential that we do everything we can to prevent the endless legal proceedings and political wars that the future provisions of this bill could cause. On the face of it, Bill C-15 represents major progress when it comes to reviewing our federal laws and ensuring that they are consistent with the United Nations Declaration on the Rights of Indigenous Peoples. I support the legislator’s intent to correct “historic injustices.” Yes, I did say “support the intent,” because I do not believe that the wishes expressed in New York can interfere with provincial and territorial rights in Canada.
I remind the Government Representative in the Senate that we live in a federation. In Canada, the provinces and territories have some exclusive jurisdictions. Any responsible federal government has a duty to respect these jurisdictions. It would therefore make sense for Ottawa to consult not only with Indigenous peoples, but also with all of the premiers before going ahead with legislative amendments. This is what Senator Carignan’s amendment calls for. I do not see why the current government would act differently with this bill compared to other bills.
Bill C-15 is the result of a three-year process, so the work should be done in the spirit of cooperation in order to move forward in Canada’s reconciliation with Indigenous peoples.
Senators have a duty to approve an amendment that will ensure the work can proceed smoothly in the future.
I will therefore not be able to vote in favour of Bill C-15 if it does not explicitly include the need to respect provincial and territorial jurisdictions.
Honourable senators, I rise to speak in support of Senator Carignan’s amendment, but I just want to mention that I have been carefully listening to the informative speeches on this amendment. I would like to respectfully and gently inform Senator Dalphond that in saying that this amendment may be motivated to delay the passage of Bill C-15, he is acting outside the rules of debate. Namely, debate must address issues, not personalities, and no one is permitted to make personal attacks nor, most importantly, to question the motives of the other speakers. That is the well-known rule against impugning motives. Yet that is what Senator Dalphond has done in suggesting that this amendment is a delaying tactic. I suggest that is not appropriate in debate and therefore is probably out of order.
I refrain from raising a point of order, Your Honour, so as not to delay the important debate we are having on this amendment. But I do want to mention that, in my respectful opinion, this is never an appropriate comment to make during a parliamentary debate.
Now, I turn to the issue and the amendment. When I look at Bill C-15 within the context of Nunavut, I note that Nunavut has a constitutionally protected comprehensive land claim agreement. Article 4 of that agreement contains a commitment from the Government of Canada to establish a “public government” serving all residents of Nunavut, whether the Inuit majority or the roughly 15% non-Inuit minority.
Now, since Canada’s adoption of the UN Declaration on the Rights of Indigenous Peoples — which will no doubt be exacerbated by the passage of this bill, without clarity on the issue of federal encroachment into provincial and territorial jurisdictions — even before the passage of Bill C-15, there is already significant confusion and debate on whether the federal government is contravening that commitment in federal legislation to public government.
Perhaps I can give one clear example. The government provided significant monies to fight TB — aimed at eradicating the tuberculosis epidemic in Nunavut — directly to a southern-based advocacy organization, despite the programs and the delivery capacity falling under the territorial responsibility for health as set out in the Nunavut Act.
These kinds of deals, encroaching on the clear jurisdiction of the territorial government as set out in the federal Nunavut Act and the federally legislated Nunavut Land Claims Agreement Act, are being made in closed-door meetings at the Inuit-Crown Partnership Committee table, in the spirit of the UN declaration, without any involvement of the Government of Nunavut, whatsoever.
Now, Senator Dalphond expressed concerns that this amendment might inject a provincial or a territorial government into consultations or negotiations between Indigenous peoples and the federal government, but colleagues, the omission of clarification on this issue could also create confusion and duplication and waste of public money.
As I have just said, while this may complicate negotiations by injecting a third party into the Crown-Indigenous negotiations, leaving out the provinces and territories also creates confusion. Recent examples abound. I would just like to cite them in showing the importance of this issue; to have clarity on this issue of federal encroachment.
The federal government, in other closed-door negotiations which took place at the Crown partnership tables, has in the first round committed to providing capital monies for women’s shelters in the territories. Of course, this is a worthwhile initiative. Please don’t mistake me as not approving of such a much-needed service. The negotiations proceeded behind closed doors with the apparent expectation that operations and maintenance funding — crucial for the operation of those 24-7 facilities — would be provided by a party that would need to plan this important consideration in its fiscal framework. But that party was not part of the negotiations; namely the territorial government with jurisdiction in that area.
I’ll just recite one other example. We have been talking about policies and principles, but I want to give real examples of how confusion is increasing in the interface between federal jurisdiction and territorial jurisdiction in my territory of Nunavut.
Another example about the need to clarify the potential of federal intrusion complicating and interfering with territorial responsibilities came about in negotiations on the Inuit Impact and Benefit Agreement on the federal commitments made in the establishment of a new National Marine Conservation Area in the High Arctic known as Tallarutiup Imanga. The federal government and the Regional Inuit Association developed plans to provide capital costs to build multi-use community facilities connected to the new conservation area. But again, since the territories were left out — but clearly these community facilities are within their jurisdiction under the Nunavut Act and their responsibility for local governments, communities, community facilities — there was no provision made for the operations and maintenance costs of these new multi-use community complexes.
So this was dumped on the Government of Nunavut after the fact, but of course, the Government of Nunavut Department of Community and Government Services has long-range capital budgets developed in careful consultation with communities for community infrastructure: fire halls, hamlet garages, hamlet council chambers, et cetera. Suddenly, this new issue was injected. In keeping with the new Inuit-Crown Partnership tables that have been established in the spirit of putting flesh on the UN declaration, the government with responsibilities in these areas was left out.
I cite these examples to show the importance of clarifying the need for the federal government acting exclusively within its jurisdiction, or involving provinces and territories in commitments that will impact their jurisdictional responsibilities in areas of shared jurisdiction, or in areas that impact the territorial jurisdiction, such as managing community multi-use facilities or shelters.
When I was speaking in my second reading speech about the example of Indigenous child welfare legislation, which clearly impacted territorial and provincial jurisdiction for child welfare, but again, left the territories out of consultations on the legislation, Senator LaBoucane-Benson protested that I had not used a good example — I’m paraphrasing her question to me — because it’s a good thing that the federal government gets involved in Indigenous child welfare legislation to help out with a problem everyone is very concerned about; respecting Indigenous children and child welfare.
However, that was not what I was concerned about, whether this was a good initiative or not, because presumably, it would also be appropriate not to leave out the territorial government in these new initiatives, which in Nunavut’s case is a government run by Inuit, the entire cabinet is Inuit, and Nunavut’s Department of Family Services deals almost exclusively with Inuit children in any event.
The same thing happened with the Indigenous languages legislation. Again, invoking UNDRIP as a motivation and a guiding interpretive source for an area of high importance in the territories and of high importance in UNDRIP, namely promoting Indigenous languages, preservation and enhancement. We have disconnects which develop so clearly between the federal government’s desire to act, and may I say encroach, in areas of provincial and territorial jurisdiction, and in this case establishing a Commissioner of Indigenous Languages for Canada, but in the process not making any acknowledgment or reach out to Nunavut and the Northwest Territories, which both already have Indigenous Language Commissioners under their language protection legislation and within their authority.
We found out in studying that bill that there was no thought as to how the two offices — the national Commissioner of Indigenous Languages and the two territorial Language Commissioners — would work together, cooperate, interface, avoid duplication and confusion.
It’s fine to talk about legal theories and the like, but this amendment seeks to clarify a problem that I see emerging and causing a waste of money, confusion, duplication, poor coordination and planning. It is in that spirit that I support an amendment that I believe is attempting to clarify that issue about confusion with respect to the extent of the federal jurisdiction.
In this connection, I believe it will be helpful to clarify through this amendment that Bill C-15 not only clearly applies to federal law but also, as we have been assured by the government, does not change federal laws immediately.
This is crucial to clarify the federal government’s clear commitment in the federal Nunavut Land Claims Agreement and the Nunavut Act, developed over decades of negotiations among Inuit and Canada, to commit to a public government — I’m just talking about Nunavut here, honourable senators — will prevail as a legal commitment that will continue to be respected by Canada, even though expectations have already risen and actions have been taken eroding this principle, based on an opposing concept of Indigenous rights to ethnic-based self-government as envisioned in UNDRIP Article 3, which declares the Indigenous peoples’ right to self-determination, including the right to autonomy or self-government in their internal and local affairs as well as ways and means for financing their autonomous functions.
Honourable senators, I have some brief remarks to make.
I want to acknowledge the point that Senator Patterson made. Though I’m not a member of the committee, I sat in on nearly all the deliberations and considerations of witnesses at the Aboriginal Affairs Committee. I thought the witnesses and all of the senators participated in the exercise in good faith, and that is certainly my view here today in the chamber.
I apologize if this feels like piling on in opposition to Senator Carignan’s amendment, which I won’t support. I don’t intend to speak to that aspect of the amendment that addresses the interpretive dimensions of the UN declaration to which Senator Gold spoke at length and with which I agree.
I support the spirit of Senator Carignan’s proposed amendments related to jurisdiction and his reminder to us that one of our duties is to ensure respect for provincial jurisdiction, but I oppose the adoption of the amendments he proposes on the basis that they are simply unnecessary.
I agree with the sentiment calling for meaningful consultation and engagement with the provinces. I would go even further and urge constructive and collaborative approaches with the provinces and territories, and Indigenous peoples and their governments, as Senator Gold acknowledged in his own remarks.
This will be critical to achieving the objectives of Bill C-15, but this can be done, this expectation through observations on the bill, followed by constructive action through the action plan collaboratively on the part of our respective governments.
In my consideration, and with respect to Senator Carignan, his jurisdictional amendments are not necessary for basic reasons associated with Canadian constitutional law. This has been spoken to by Senator Dalphond and Senator Gold. I will be brief in reiterating some aspects of this point.
It is a truism of Canada’s federation that one order of government cannot impose its will upon another order of government in that government’s exclusive spirit of jurisdiction, as established by the Constitution and its interpretation by the courts, notably the Supreme Court of Canada.
Indeed, the choice of words on the jurisdiction point on this bill matter not. Ottawa simply cannot impose its jurisdictional authority in areas of provincial jurisdiction, even if it wanted to.
Let me go even further. If Ottawa wrote explicitly in this bill that it applied to areas of provincial jurisdiction, it would be of no force and effect. Any other interpretation would render the constitutional division of powers between federal and provincial governments meaningless — a principle upon which this country was founded.
The law is equally clear when Canada is adopting an international treaty or convention or, in this case, a UN declaration in one form or other. Simply put, where the adoption of a treaty or convention could have application to an area of provincial jurisdiction, somewhat like the imposition of federal jurisdiction by a side door, by adopting the treaty or convention our federal government cannot impose its terms on the provinces. This has been clear in Canadian constitutional law since 1951, in a decision of the Privy Council in the so-called “Labour Conventions” case, and in the 70 years since then, our federal government has never challenged this important aspect of our constitutional structure.
All this to say that provincial jurisdiction is immune from these forms of intervention and, as a consequence, the amendment is not needed. Thank you.
Senator Cotter, I’m grateful that we have such an experienced senior official from a provincial government participating in this debate at the Attorney General level and elsewhere.
You’ve made it clear that you think the amendment is not necessary because Canadian constitutional law is clear since the “Labour Conventions” case. First, where jurisdictional authority is clear this may well apply, but what about areas of shared jurisdiction? I mentioned some in my comments: Indigenous child welfare and health. Would you agree that maybe that’s an area rife for confusion and a need for clarity?
Second, do you think these discussions we’re having here may be helpful to judges who may want to take judicial notice of the intention of legislators in the inevitable challenges that may, sadly, arise in moving forward on this bill?
To respond to your last point first, Senator Patterson, I agree. I believe this dialogue is helpful for a wide range of people considering this important bill. This is a fundamentally important adjustment in the fabric of Canada in a constructive way, and this will guide legislators, it will guide policy developers and it will guide judges.
On the question of areas of shared jurisdiction, I think you make a fair point, but the fact is there is an existing constitutional framework that addresses that question, and that constitutional framework is not changed by Ottawa writing a piece of legislation. In that respect, while I’m highly supportive of what I will call the constructive entanglement of jurisdictions, in order for us to do better in this country, particularly in our relationships with Indigenous peoples and governments, that isn’t affected one iota by the actual language of the government but by the constitutional fabric of the country. It means governments need to work together on that. Legislating that they work together seems a peculiar way of building the country. It is surely an expectation of our leaders — and I would put ourselves in that category in a modest way — to do that for the benefit of Canadians and, with respect to this legislation, Indigenous Canadians.
Naturally, I understand the argument relative to constitutional jurisdictions; it is a subject that I am also very familiar with. If the federal government acts within its constitutional jurisdiction, it does not have an obligation to consult the provinces. Why would it be difficult to add to the bill the obligation to consult the provinces when a provision could have an impact on them, and to allow them to provide their comments?
As you said so well, the federal government would be acting within its constitutional jurisdiction and would have no obligation to consult the provinces. What is the problem with including this obligation in the bill?
I believe the argument then would be that, in every piece of legislation that the Government of Canada introduces, it promises to consult with the provinces. It seems to me that’s a given in the fabric of our federation. To write it into legislation as opposed to building it into what I would call action plan commitments of respective orders of government makes more sense.
One could say, for example, in the parliament of Quebec or in the legislature of Saskatchewan every bill should more or less say the same thing: That is, if it might come in contact with federal jurisdiction, the province would promise to consult with the federal government. That strikes me as an unnecessary statement in the fabric of the country.
Honourable senators, before we resume, it is not yet 7 p.m., and according to a previous order I am required to leave the chamber and suspend for about five minutes unless there is agreement that we proceed.