United Nations Declaration on the Rights of Indigenous Peoples Bill

Third Reading--Debate Continued

June 15, 2021


The Hon. the Speaker pro tempore
[19:11]

I’m sorry, Senator Forest-Niesing, but your time is up.

Senator Forest-Niesing
[19:11]

May I have more time to finish my speech?

The Hon. the Speaker pro tempore
[19:11]

Senator Forest-Niesing is asking for five more minutes to finish her speech. Is it agreed, honourable senators?

Senator Forest-Niesing
[19:11]

Thank you.

I think this approach would be beneficial in many ways and deserves serious consideration.

In conclusion, I very much want to see the implementation of the United Nations Declaration on the Rights of Indigenous Peoples succeed in Canada because I want my White Franco-Ontarian heritage and my heritage as a member of the Abenaki First Nation to co-exist within me on equal footing.

That is also my heartfelt wish for Indigenous peoples and the people of Canada.

Thank you, marsee.

Hon. Peter M. Boehm
[19:12]

Honourable senators, I rise to speak to Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, commonly known as UNDRIP. Thank you to Senator LaBoucane-Benson for ably sponsoring the bill and to members of the Standing Senate Committee on Aboriginal Peoples for their diligent work.

I strongly support this measure, both the legislation itself and the spirit of it. I felt the same way in 2018 when I spoke on the last — but far from the first — UNDRIP attempt, then Bill C-262, as part of my inaugural speech in this chamber. Actually, it wasn’t this chamber; it was the old chamber, but it was the chamber. It is my hope and the hope of many others that this will be the final round of speeches on implementing UNDRIP.

Bringing Canada’s domestic laws in line with the declaration is long overdue, colleagues. UNDRIP was adopted by the United Nations in 2007 by 144 member states. Canada voted against it at the time but finally adopted the declaration after endorsing, but not signing, in 2010.

Only now, after introduction in the House of Commons in December 2020 following years of promises by the government and years of private members’ bills, is Parliament dealing with implementation as a matter of government business. Getting this done is a vital step in the ever-evolving journey of reconciliation. After a year marked not just by a once-in-a-century global health crisis but also by a generational reckoning with systemic racism and discrimination, it is a step we must take now.

To anyone questioning why this is so important, I wish to offer just a few reasons.

In 2021, we are still debating constitutionally enshrined, Supreme Court-affirmed treaty rights that the Mi’kmaq and Maliseet peoples have held for 260 years to fish, hunt and gather to provide for their families. I refer, of course, to the now-adopted motion of Senator Francis and Senator Christmas on the dispute in Nova Scotia between Indigenous and non-Indigenous commercial lobster fishers.

While 107 long-term drinking water advisories have been lifted since November 2015, as of May 21 there are 52 still in effect in 33 First Nations communities across Canada.

There is the huge overrepresentation of Indigenous peoples in Canada’s criminal justice system compared to non-Indigenous peoples. In fact, while the proportion of non-Indigenous peoples in Canada’s jails has been decreasing over the past decade, the rate of incarcerated Indigenous peoples has been increasing for much longer. Indigenous peoples compose only 5% of Canada’s population but represent more than 30% of inmates in federal prisons. Among incarcerated women, 42% are Indigenous.

Reaching this 30% threshold led the Correctional Investigator of Canada, in a statement in January 2020, to refer to the “. . . deepening ‘Indigenization‘ of Canada’s correctional system.” Indigenous women and girls have been so disproportionately victimized by violence that we needed a National Inquiry into Missing and Murdered Indigenous Women and Girls, the final report of which called for full implementation of and compliance with UNDRIP.

Call to Action 43 of the Truth and Reconciliation Commission, or TRC, chaired by our former colleague Murray Sinclair, also urged all levels of government in Canada to fully adopt and implement the declaration.

Finally, the remains of 215 innocent children were recently found in unmarked graves on the site of what was once the Kamloops Indian Residential School in British Columbia. The institution closed in 1978. That’s far from ancient history, colleagues. We know there are more such graves across Canada, and the government must do much more to fund and support searches of former school sites, as the TRC called for. Knowing there are more grim discoveries to come makes it even harder to fathom how many families suffered not just the theft of their children but also their chance to bury them and say goodbye in a dignified way, following their own traditions and customs.

It goes without saying that the tragic legacy of generational pain and trauma caused by colonialism and especially the residential school system continues to cast a long shadow. Reconciliation, required because of historical mistreatment and abuse, has shaped public policy discourse in Canada in recent years. There has been progress, there has been regression and there has been maintenance of the status quo.

Bill C-15 provides a golden shot at progress: the legislative framework to implement UNDRIP in Canada and to advance reconciliation. We cannot change the wrongs of the past, but we can fix today’s injustices and work toward a better future built on a strong nation-to-nation relationship. That is the opportunity offered by Bill C-15, colleagues.

The articles contained in the declaration affirm a principled framework for justice, reconciliation, healing and peace. There is little, if any, disagreement on that.

The main objection to UNDRIP legislation, past and present, has revolved around the issue of “free, prior, and informed consent.”

Specifically, this term has led to concerns that it amounts to Indigenous peoples having the power to veto actions and projects that would impact their communities, lands, and/or treaty rights.

How this consent requirement would work when it comes to resource development and economic projects is a point of contention for opponents because the term is not defined in C-15.

C-15, and consent specifically, has been charged with being anti-development because of the perception that free, prior, and informed consent provides Indigenous peoples with veto power to stop and/or block projects with which they do not agree.

If that’s the case, critics say, and especially without a clear definition, Canada will lose economic opportunities because resource and energy companies will not want to risk their projects being delayed by required consultations or even blocked down the line, especially if the project is controversial.

As many experts have said, though, concerns about consent being a veto are unfounded.

On May 7, in his appearance before the Standing Senate Committee on Aboriginal Peoples, the sponsor of Bill C-15, Minister of Justice David Lametti, was clear. He said:

Free, prior and informed consent . . . is not a veto over government decision-making. FPIC does not remove or replace government decision-making authority but it sets into place a process which will ensure meaningful participation.

The point of free, prior and informed consent, far from being anti-development, is meant to ensure that the long-held rights of Indigenous peoples are respected.

Testifying before the House of Commons Committee on Indigenous and Northern Affairs on April 13, Assembly of First Nations Chief Perry Bellegarde summed up, not just the need for, but indeed the benefit of free, prior and informed consent. He said:

To me, that’s what this bill speaks to — joint decision-making, getting involved sooner rather than later so you avoid blockades and you avoid legal battles.

Meaningful engagement with Indigenous communities early on is hugely important because it provides stability, in that all sides know what to expect and know they will be included right from the start. Further, it avoids, as Chief Bellegarde and others have pointed out, long and costly court battles and blockades — all of which are damaging on multiple levels. Nothing — no power, no authority — is being taken away from the government, nor from anyone else. Free, prior and informed consent is about empowering Indigenous peoples to be able to meaningfully exercise their treaty rights and those enshrined in the Constitution.

It is about dismantling the long-standing colonial approach to Canada’s dealings with Indigenous communities whereby decisions that impact them are made without them. This is fundamental, colleagues. We cannot continue the journey of reconciliation, nor can Canada speak credibly about the importance it places on the nation-to-nation relationship, if we keep getting hung up on this misguided fear that the right to free, prior and informed consent equates to veto power.

But it is not enough to simply accept what it is not. We must also fully accept and recognize that Indigenous peoples have long-held and hard-won rights to have a meaningful say over what happens on their land and in their communities. This brings me back to my earlier point about what we are still discussing in 2021 and how far we have left to go.

The last point I wish to make is about two of the major strengths of Bill C-15.

Along with requiring that Canada’s domestic laws be brought into line with the declaration, Bill C-15 also states that:

6(1) The Minister must, in consultation and cooperation with Indigenous peoples and with other federal ministers, prepare and implement an action plan to achieve the objectives of the Declaration.

This action plan must be completed no later than two years after Royal Assent and must include measures to address and combat a wide range of issues that negatively impact Indigenous peoples. It must include ways to monitor the plan’s implementation, must be tabled in Parliament, and must be made public.

Further, the minister will be required, after consultation and cooperation with Indigenous peoples, to report annually to Parliament on the progress of implementing the declaration and the action plan.

Colleagues, this is how real change happens: with monitoring and measuring progress and with, above all, accountability.

In 2010, the government of the day referred to the declaration as an “aspirational document.” Many of the concerns from back then are ones we have heard throughout the various iterations of UNDRIP’s rocky road in our Parliament. It is no longer good enough to simply aspire to implement the declaration in Canada. We cannot keep coming up with excuses. Not in 2021 and not after the many lessons learned over the past year and even more recently. Canada will never live up to its promise and potential without taking significant strides on that ever-evolving journey of reconciliation. We will not get there if we do not get this done. I urge all honourable senators to vote in favour of Bill C-15. Thank you.

Hon. Marilou McPhedran
[19:25]

As a senator from Manitoba, I recognize that I live on Treaty 1 territory, the traditional territory of the Anishinabe, Cree, Oji-Cree, Dakota and Dene, and the Métis Nation homeland.

I also wish to acknowledge that the Parliament of Canada is situated on unceded, unsurrendered Algonquin Anishinabe territory and that we have many people joining us today from across Turtle Island who are located on both treaty and unsurrendered lands.

I speak today in favour of Bill C-15 to incorporate in Canadian laws the United Nations Declaration on the Rights of Indigenous Peoples, or the declaration, as adopted by the UN General Assembly on September 13, 2007, by a majority vote that did not include Canada.

My support for this bill is both technical in law and emotional. My esteemed colleague, Cree lawyer Romeo Saganash, introduced his first bill on this topic, Bill C-469, back in 2013 when he was an NDP member of Parliament. The title set out the bill’s intent: An Act to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples. This bill did not make it to second reading.

The next year, Mr. Saganash tried again with the introduction of Bill C-641, An Act to ensure that the laws of Canada are in harmony with the declaration, which was defeated at second reading in May 2015.

But 12 months later, in May 2016, at the fifteenth session of the UN Permanent Forum on Indigenous Issues at the UN headquarters in New York City, Minister Carolyn Bennett spoke for the Government of Canada and said, I’m here to announce, on behalf of Canada, that:

We are now a full supporter of the declaration, without qualification.

We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution.

Dr. Bennett noted:

Canada is one of the only countries in the world that has already incorporated Indigenous rights in its Constitution.

By adopting and implementing the Declaration, we are excited that we are breathing life into Section 35 and recognizing it now as a full box of rights for Indigenous peoples in Canada.

That same year, 2016, MP Saganash introduced the private member’s Bill C-262 entitled: An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, sponsored in this place by now-retired senator Murray Sinclair and killed in the Senate in 2019.

Bill C-15, now before us, was introduced in December 2020 by the Minister of Justice and Attorney General, more than five years after Dr. Bennett committed the Government of Canada to the implementation of the UN declaration in Canadian law.

As Canadians, we have all been called to action. We have heard Canada’s Truth and Reconciliation Commission explicitly call upon every level of government to adopt and fully implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation. Just two weeks ago, the National Action Plan on Missing and Murdered Indigenous Women and Girls was released, calling again to adopt and implement this declaration. Of the many tragic, horrific outcomes of Canada’s colonialist violence against Indigenous peoples in this country, the voices of Indigenous residential school students call from their unmarked graves, demanding better now and for future generations.

Today’s Indigenous children continue to be overrepresented in provincial and federal foster system. Indigenous peoples of all genders continue to be hugely overrepresented in Canadian prisons. There are Indigenous youth and children losing hope in communities across this country. There have been too many tragedies to list here, undoubtedly with more to be revealed, but we must not turn from these truths or from this evidence of genocide perpetrated through forced assimilation structures constructed through the Indian Act, such as the residential school system and the adopting out of Indigenous children by the Sixties Scoop.

Of the violence spoken of in testimonies by survivors and family members, the National Inquiry into Missing and Murdered Indigenous Women and Girls said:

The violence the National Inquiry heard amounts to a race-based genocide of Indigenous Peoples, including First Nations, Inuit and Métis, which especially targets women, girls, and 2SLGBTQQIA people.

Adoption of Bill C-15 will not magically heal or provide full remedies for these human rights violations, but, honourable senators, it will enhance the substance and potential of the foundation needed to make deep systemic changes in Canada to follow the path to reconciliation. The inquiry called for a national action plan to address violence against Indigenous women, girls and 2SLGBTQQIA people.

In Bill C-15, subclause 6(1) sets out specific steps for the government as to what that action plan should address and the measures that are to be included. This is significant in that the specificity is a useful means to holding the government accountable for implementation.

Honourable senators, there have been many concerns expressed about the implications of this bill on rights to land and resources. I do not disregard these concerns, having respectfully abstained on the amendment proposed by Senator McCallum.

I also think it is important to acknowledge, respectfully but briefly, some of the other concerns raised about the process and what this bill does or does not do. The Association of Iroquois and Allied Indians stated that the government’s process was inadequate:

Meetings were capped, time was restricted, and engagement periods were not extended to make proper use of time and information.

Several Indigenous activist networks analyzed the bill, concluding that clause 2 of the bill would maintain the common law interpretation of subsection 35(1) and (2) of the Constitution Act, 1982. They argued it’s based on the colonial Doctrine of Discovery stripping Indigenous people of their land ownership and land rights.

Nevertheless, I support this bill because we will always have a multitude of opinions, and I choose to rely upon the analysis of Indigenous legal experts whom I know and trust, and also informed by my experience working in the multilateral UN system and seeing how international human rights instruments can be highly useful in claiming and securing positive substantive changes to reset and balance the scales of justice.

An expert from my home province of Manitoba, Métis law professor Brenda Gunn, summarized her support for Bill C-15 to the members of the Senate Standing Committee on Aboriginal Peoples — five years to the day from when Minister Bennett first spoke at the UN — with these words that I cite with agreement:

The bill provides greater certainty for the application of the UN declaration in Canadian law and addresses some of the hesitancy that judges have in regard to not understanding how international law applies. The action plan provides space for negotiations and discussions on how to implement rights, which allows for us to address the specific differences among Indigenous peoples. The UN declaration and Bill C-15 build up from existing rights, and the annual reporting provides a level of accountability and transparency for implementing the UN declaration. Finally, it is an important step toward reconciliation and toward a fairer and more just Canada for all.

I would like to turn briefly to analysis of the bill’s FPIC, or free, prior and informed consent, as discussed by the UN Expert Mechanism on the Rights of Indigenous Peoples, or EMRIP, that identifies three functions of FPIC that are relevant: one, to restore Indigenous peoples’ control over their land and resources; two, to restore Indigenous peoples’ cultural integrity, pride and self-esteem; and three, to redress the power imbalance between Indigenous peoples and states, with a view to forging new partnerships based on rights and mutual respect.

The EMRIP notes that free, prior and informed consent operates fundamentally as a safeguard for the collective rights of Indigenous peoples. According to the EMRIP interpretation, Canada is obliged to consult with Indigenous peoples using a qualitative process of dialogue and negotiation in each step of planning through implementation, with consent as the objective. Honourable senators, we can see this potential in this bill and adoption will have a facilitating effect.

I now turn to how the bill could support what Indigenous peoples are already doing in the substantive re-articulation of Indigenous law and legal processes. I’m honoured to quote an esteemed former colleague, Dr. Val Napoleon, in describing Bill C-15 as:

 . . . an opportunity for Canada to be actively and truly multijuridical so that legal principles can guide how Indigenous peoples then interact with Canada, but in a supported way because there has been an undermining of those systems.

Professor Napoleon also sheds light on fears that the declaration and this bill somehow create a veto power that would have negative consequences for Canada. She told the Aboriginal Peoples Committee that this notion of a veto:

. . . derives from a very impoverished view of the law. It derives from the worst possible perception of how law operates. If we think about what the standards are by which our law operates in Canada and the legalities that make it legal, those standards will continue through all of its interpretations through the work on matters that we take to the law. So the idea of a veto, that’s not how the application of law works. That is not how the courts work.

There are balancing principled legal processes through which legitimacy of a decision is reached on a particular matter. Then the next case will require another principled process on that matter that is before it. So flattening that process and to say that it will create a veto is problematic.

Honourable senators, the context for our current robust debate is much larger and longer than the bill before us now. We have been engaged since Canada refused to sign on to the UN declaration in 2007, then shifted and adopted it in 2010 through a succession of bills, beginning with the first introduced by Romeo Saganash in 2013.

Canada has come a long way from 14 years ago when it refused to accept the declaration to where we are today with this bill’s commitment to incorporate the declaration in Canadian law. But, not to be mistaken, while passage of Bill C-15 is an incremental and small step, it is an essential step on the path to reconciliation, and a lot of work is still ahead for our generation and many more to follow.

I look forward to voting in favour of this bill. Thank you, meegwetch.

Hon. Brian Francis
[19:39]

Honourable senators, I join you today from Epekwitk, the ancestral and unceded territory of my people, the Mi’kmaq, to speak in unequivocal support of Bill C-15.

The UN declaration is the result of decades of work by Indigenous leaders. It does not create new rights. Instead, it sets out existing international human rights standards that are specific to the circumstances of Indigenous people. It is also a valuable tool for promoting the compliance of state parties to their obligations.

Before the declaration was adopted by the UN General Assembly in 2007, many states did not recognize the status of Indigenous people as rights holders under international law. While 144 states later voted in favour, Canada was one of the four to reject it. Even when Canada reversed its position in 2010 and endorsed the declaration, it did so with qualifications, emphasizing that it was only aspirational and not legally binding. In 2016, Canada went on to endorse the declaration without qualification and committed to its full and effective implementation.

The context that may be unfamiliar to some is that it was only because of mounting pressure that in November 2017 the federal government went on to support Bill C-262 in the House of Commons. That bill was adopted in the other place in May 2018, with 206 votes in favour and 79 against, but after months of unnecessary delays and obstructions, it died on the Order Paper of the Senate on National Indigenous Peoples Day in 2019. That outcome fuelled widespread disappointment and frustration across the country. In response to calls from Indigenous people urging Canada to immediately implement the UN declaration, this federal government introduced Bill C-15 last December.

The progress made in past decades is not due to the genuine willingness of federal governments, both Conservatives and Liberal, to heal the broken relationship with First Nations, Métis and Inuit. It is due to the long and hard-fought struggle, both domestically and internationally, to ensure recognition, protection and fulfillment of our inherent rights.

Honourable senators, Bill C-15 sets out a legislative framework to advance the implementation of UNDRIP in Canada, and its passage is critical to advancing national reconciliation. The bill explicitly affirms that UNDRIP, as a universal, international human rights instrument, is applicable in Canadian law. Although provincial and federal courts already use it as a source of interpretation, Professor Naiomi Metallic and others have spoken about the importance of this affirmation, given that most lawyers, judges and the broader public remain woefully ignorant and resistant to its application and interpretation.

Once ratified through Bill C-15, UNDRIP will no longer be a mere political aspiration, but rather an international instrument that is legally binding on the state. In this regard, the bill has the potential to contribute to the advancement of the rights of Indigenous people, including through the evolution of jurisprudence on section 35 rights.

The bill also requires that current and future federal governments work in consultation and cooperation with Indigenous people to bring federal laws and policies into alignment with the declaration, as well as to develop an action plan to achieve its objectives. Using a distinctions-based approach, the action plan must be tabled in both Houses of Parliament and be made public within the two-year timeline. If, for instance, deadlines are not met or issues arise that cannot be resolved, committees in both places will be able to conduct hearings and make recommendations. Indigenous people will be able to voice their views and concerns at this stage. These legal requirements add an important layer of transparency, oversight and accountability. It is not lost on me that the transformative change some of us envision following the adoption of the bill will not happen overnight. We know that it is going to take a long time and hard work, and we will not always get it right. However, this process cannot be delayed any longer.

Honourable senators, Bill C-15 has generated some concern, and even fear, because of misunderstandings. To assist in your deliberations, I will do my best to provide some clarity now. Despite some suggestions, Bill C-15 does not impose new obligations on provincial, territorial or municipal governments. The bill only imposes obligations on the federal government. The preamble specifically recognizes that it is up to each of these jurisdictions to establish their own approaches. That is exactly what British Columbia did in 2019, and what the Northwest Territories is working toward. We cannot forget that the declaration is an international human rights instrument that is presently binding on Canada through the presumption of conformity and customary law. As a result, all levels of government — federal, provincial, territorial and municipal — must respect minimum human rights standards of Indigenous people. In other words, our different jurisdictions cannot just pick and choose which rights are convenient to uphold.

There has been much fear mongering that the right to free, prior and informed consent will, through the adoption of Bill C-15, provide Indigenous people with a veto over resource development and thus threaten economic opportunities. That is false. The right to free, prior and informed consent, or FPIC, does not amount to a veto. In fact, this word is not used in the declaration or the bill. FPIC goes beyond saying “yes” or “no.” It is concerned with the effective and meaningful participation of Indigenous people in decision-making processes that affect us before actions are taken. Although governments have an obligation to consult and cooperate in good faith with Indigenous people on proposed projects involving our lands, territories and resources, as well as in a wide range of other contexts, industry and other actors are also required to uphold minimum human rights standards.

Dr. Wilton Littlechild, for example, said that FPIC is key to upholding our right to self-determination and self-governance; protecting our lands, territories and resources; reducing or eliminating costly delays because of conflict and litigation; and facilitating equitable partnerships. Grand Chief Abel Bosum spoke about the gradual but significant advancements made by the Cree Nation in northern Quebec over the past four decades with regard to involvement in economic development projects. We also heard from the National Indigenous Economic Development Board, the National Aboriginal Capital Corporations Association, the Canadian Council for Aboriginal Business, the Reconciliation and Responsible Investment Initiative and others about the importance of Indigenous rights recognition through the passage of Bill C-15 to build a more prosperous and equitable future for Indigenous peoples and Canada.

Before concluding, I want to address the argument that Bill C-15 has been rushed through Parliament without enough consultation. It is true that some rights holders have indicated that they were not properly consulted. Some critics of the bill have pointed to this issue as a reason for the bill not to pass. However, the fact remains that there is overwhelming support for Bill C-15 by Indigenous peoples across Canada. Yes, there is some opposition, but that is to be expected given the distrust of governments at all levels due to past and present actions. The Committee on Aboriginal Peoples heard that the federal government undertook 33 bilateral sessions with the Assembly of First Nations, ITK and the Métis National Council. In addition, it held over 70 virtual sessions. Some recommendations made during this process became parts of Bill C-15.

We cannot forget that both the TRC and the MMIWG called on Canada to pass legislation to implement UNDRIP. Dr. Littlechild told our committee:

We as the Truth and Reconciliation Commission held the longest and most extensive consultation of Indigenous peoples. Over 7,000 witnesses came in front of us and talked about the UN declaration.

In terms of the time frame, how much time do we need?

Professor Metallic also reminded us that Canada has been discussing the contents of this bill for over years. Romeo Saganash, the former NDP MP who is a Cree from northern Quebec, introduced private member’s bills in 2014 and 2016 to implement the declaration that were defeated. He additionally conducted extensive cross-country meetings.

The relevant committees in the House and Senate examined Bill C-262 in 2018 for over 15 days, and Bill C-15, which builds upon it, has received even more parliamentary scrutiny. The House committee heard from over 40 witnesses and received 48 written submissions. The Senate committee heard from 89 witnesses in total and received 52 written briefs. Based on this context, Professor Metallic went on to state the following:

There is no substantive change in the law here, simply a clarification of the state of existing law and a commitment to a process to make future substantive changes, which explicitly requires Indigenous participation. There are therefore no adverse impacts of the law; the effects of the law are positive at best, or neutral at worst. Given that any future changes in the law will require consultation with Indigenous people, plus the five plus years of discussion over the contents of the bill, I think it is time for us to move forward and get to the real work of implementing the Declaration.

I completely agree with the views of these two renowned Indigenous experts. We cannot let this historical opportunity pass us by again. Colleagues, the critics of the bill have argued that the consultations conducted during both Bill C-262 and Bill C-15 are different matters. I strongly disagree.

The initial draft of Bill C-15 that was provided to Indigenous people during early consultations was Bill C-262. We need to consider both bills together to fully understand the extensive consultation that has occurred in the last five years and the significant contributions that Indigenous people have made since. The critics have also argued that the federal government did not fulfill its duty to consult Indigenous people when it came to the development of Bill C-15. However, in accordance with Mikisew Cree First Nation v. Canada from 2018, this assertion is contrary to the law as it stands today. If we look at the consultation that has been undertaken on Bill C-15, some could argue that the federal government likely exceeded what it was legally required to do.

Arguments have also been raised by critics as to whether there should be consensus by Indigenous people on Bill C-15. Yet it is unreasonable to expect 654 First Nations in Canada, without including Métis and Inuit, to reach such a threshold. And why should we if we do not expect the same of the non-Indigenous population? We cannot even agree amongst ourselves here.

Colleagues, since coming into existence in 1867, the Senate has played a key role in the genocide of Indigenous people through the imposition of laws and policies, such as the residential schools, which were designed to exploit, subjugate and erase us and which have contributed to the staggering rates of violence, death and suicide that we experience in our communities today.

That is the hard truth that this chamber of sober second thought must atone for. Indigenous people not only deserve better, but demand better from each of us. Words and promises are not relevant to real reconciliation. What matters are tangible actions and outcomes. I therefore implore you to vote in favour of Bill C-15 without delay. Wela’lioq. Thank you.

[19:53]

Honourable senators, it’s an honour to follow after the great Deputy Chair of the Aboriginal Peoples Committee, Senator Francis.

I rise today to speak to Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples. I want to start by thanking Senator Dan Christmas, Chair of the Aboriginal Peoples committee, for his incredible example of servant leadership. He put his own questions, opinions and interests aside to organize and operate a series of meetings that could not have been more comprehensive or complete.

Thank you, Senator Christmas. And thank you to our very capable staff who provided their usual high standard of expertise and service in support of our work.

The committee heard from a wide range of witnesses including legal and constitutional experts, government officials, Indigenous leaders from national and regional organizations, as well as rights and title holders from across the country. Our hearings totalled 24 hours spread out over six days.

From my perspective, there was no clear consensus amongst stakeholders regarding Bill C-15. It is not a perfect bill. But there was near-unanimous support for the principles of the United Nations Declaration on the Rights of Indigenous Peoples. In fact, in my eight years as a member of the committee, I have rarely seen an issue where the heart of the matter was so strongly supported. We heard from multiple witnesses words to the effect of “I support UNDRIP, but” and then they went on to discuss their concerns with respect to Bill C-15. These stakeholders were from across the spectrum, from scholars, rights and title holders to resource industry people and groups and particularly provincial governments.

Honourable senators, I have deep concerns about the bill. Here are my top concerns: The bill has some wording issues that we should have fixed with amendments, the French and English versions may have differing meanings in one spot and this language issue is compounded by the curious use of the words “Canadian law” in place of the usual phrase “laws of Canada.” This has caused some heartburn for provinces looking to protect their jurisdiction.

On this issue, the committee did its best to clarify through questions on the record with government officials and the sponsor of the bill and the Government Representative in the Senate, all who spoke clearly that the intention is that this bill’s language refers to the laws emanating from the Parliament of Canada. We further noted this in our observations. Today, Minister Lametti and, again, Leader of the Government Gold brought further clarification and confirmation of this fact — all of this in place of an amendment that, but for the pressures of time, would have been an easy fix.

My second concern arises from the testimony of a senior legal and constitutional scholar that the placement of certain phrases in the bill raises a concern where some rights holders have publicly stated their belief that the bill has immediate and wide-ranging effect on the laws of Canada. This has been called in some quarters “divergent expectations.”

There was a fear stated that we may see lawyers rushing to court with an argument that this wording in the bill provides them with the tools to relitigate issues through the lens of UNDRIP. This is the so-called “legal chaos concern.” Again, the committee was careful to get statements on the record from ministers and government officials and also former MP Romeo Saganash whose prior bill, Bill C-262, forms the foundation for this bill. Their comments made clear to me and others that this bill does not confer UNDRIP any more effect on the laws of Canada than it did before.

This is an important fact and is a major difference between Bill C-262 and Bill C-15. This bill is a plan to make a plan and implement UNDRIP in the future.

Jody Wilson-Raybould, former justice minister and Member of Parliament and a person whom many of us in this chamber admire greatly, did not testify at committee but made the following statement about this very question:

There should be no confusion: Implementation has not happened. Bill C-15 (UNDRIP), if it is passed by Parliament in the coming weeks, does not implement the human rights of Indigenous peoples. The bill says the government will take action to develop a plan to implement them.

On the day the bill passes no aspect of the life of any Indigenous person in this country will change. And the laws and policies that are on the books and the practices of government will not somehow miraculously be transformed.

Anyone in government who tells you differently does not understand their own legislation. At best, it will push future governments to do new things, and make it harder for them to do so little — unlike this federal government and the ones before.

I love the way she speaks. In a few sentences, this luminous leader has provided us with her usual clarity.

I would say that we can all agree, notwithstanding some of the criticisms that are in former Minister Raybould’s comments, that this is a small step, and an important step forward.

A big issue for me and for many is around the definition of the term “free, prior and informed consent,” which features prominently in the UN declaration. The only clarity that we got from the government and proponents of the bill is that it’s not a veto. Okay, we understand that; it’s not a veto.

Any work on helping to define FPIC was left to future discussions. There was a vague assertion that some work would be done during the two-year action plan development phase of the bill and possibly some guiding principles will emerge. We’ll see.

But make no mistake, colleagues, this issue is critical to the success of UNDRIP in Canada, where we have roughly 700 distinct Indigenous communities, including First Nations, Métis and Inuit — 700 distinct Indigenous communities that might quite legitimately insist on their right to free, prior and informed consent.

However, there is nothing here yet to provide any guidance and financial resources — no financial resources — to allow these 700 communities to build their processes and capacity in this area, and no thought appears to have been given to anyone who may wish to eventually seek consent.

So, on the biggest issue of concern for concerned Canadians, it’s all a bit fuzzy as to how this is going to work out.

That brings me to my greatest fear, which is that the government will not do the hard work to develop a meaningful action plan in the next two years.

Colleagues, this fear is not unwarranted. We have seen this with other bills in this government and with time-sensitive initiatives before — many times — especially on bills and initiatives involving Indigenous people. This is not a government that has covered itself in glory for its ability to convert high-minded words into action on the ground.

In addition, and most worryingly, the government quickly accepted an amendment in the other place to reduce the timeline for the action plan development from their proposed three years to two years, without any discussion as to how they would make up for the shortfall in time. This makes me wonder and worry how serious they are about doing the hard work that needs to be done in order for this to be a success for Canada and for Indigenous people.

We have unclear wording in the bill. We have an unclear definition of FPIC. We have a legitimate worry that the government is not up to doing the hard work to get the next crucial step right.

This could be the depressing end to my comments. Instead, let me tell you why I support this bill. First, it is clear that we in Canada have come to the end of the road, and it is a dead end, for the way resource development has been conducted in the past. Over the past number of years, we have constructed our own Gordian Knot of suffocating bureaucratic regulation, clever environmental activism, Indigenous rights awakening, technocratic and uninspired industry leadership, conflicting socio-economic ideologies and political agendas.

Investment in Canada has dried up. Most of us haven’t noticed it yet, because it takes awhile to show up. The first people who will notice it will be working people, but we’ll eventually notice it, too. It will cause great pain across this country when it shows up.

The United Nations Declaration on the Rights of Indigenous Peoples, in my mind, offers everyone the high road — the hard road, but the high road — to do what is right for Canada and for all Canadians. If we can untie this knot in a way that allows Canada and all its people to succeed in the responsible and fair development of resources, jobs and wealth, then we will truly deserve the respect and admiration of people around the world.

Canadians have been consistently clear in polling that they want resource development, protection for the environment, and Indigenous people to achieve prosperity and full control of their futures. There is a road to this, and we must find it together through hard work, through honesty and through good faith.

My second and more personal reason for supporting this bill is because I believe we must put our faith in Indigenous people and their leaders. Having met hundreds of Indigenous leaders over the course of my life, and particularly in my time in the Senate, I have absolutely no hesitation in doing so.

I will be forever grateful to former senator Murray Sinclair, who, a few years ago, insisted that the Aboriginal Committee undertake a mini-study of the history of the relationship between Canada and its Indigenous people. We issued a report in the Forty-second Parliament — report number 15 — entitled How Did We Get Here? A Concise, Unvarnished Account of the History of the Relationship between Indigenous Peoples and Canada. You should read it. The study was one of the most humbling experiences of my life. What struck me most was how often, over the course of 400 years, Indigenous peoples put their faith in Canada. Time and again, Indigenous peoples acted in good faith. They acted in good faith consistently.

Free, prior and informed consent requires good faith on both sides — and trust. There is a lot of hard work to be done here, but it needs to be done if we are ever going to be the country that we can be and that we should be.

So I will stand for this bill. I do so convinced that this modest, hopeful step forward is the right thing, but not the easy thing, for my province, my country and for all Canadians — every last one of us. Thank you.

Hon. Marty Klyne
[20:09]

Would Senator Tannas take a question?

[20:09]

You bet.

Senator Klyne
[20:09]

Thank you. I have a few questions to ask in order to make a question, if you will.

I don’t think there is anyone in the room who would deny a person self-determination in a situation where each person has the ability to make choices and manage their own life. Similarly, I don’t think there is anyone who would deny participation in education, ceremonies, culture and language. I think we all respect people’s rights to ceremonies, culture and language; as well, on the side of participating, there is the right to participate and compete for jobs or the right to participate and compete for contracts.

Should Indigenous peoples’ consent not be sought to effectively determine the outcome of decision making that affects their world and not merely be involved? In that regard, NIMBY extends beyond non-Indigenous. NIMBY also applies to Indigenous peoples. In recognizing the right to self-determination, recognizing the right to participate, and the Indigenous peoples being able to seek consent and vice versa, the developers, to use your concerns about investment not being made, and those wanting to make the investment or development, should be able to seek out the consent of Indigenous peoples about things that will affect their world, in their backyard.

An earlier speaker — I can’t remember if it was Senator Boehm — had mentioned Perry Bellegarde’s reference to the idea that this will help lead to trying to find that common ground to build on to move forward. There are a number of groups out there that want to see active investment in development and they want to participate in that. They want to compete for the jobs. They want to compete for the contracts. While there might be one Indigenous group that doesn’t want to follow the process, I hazard a guess the ratio is probably extremely high in that one group who wants to proceed, who want to get to, as you call it, the plan to make a plan. It will be a hard row to hoe, but hard or easy has nothing to do with this. We need to start making progress and this is a good platform to lift off from.

In terms of FPIC, to me it means nothing more than the right to participate, the right to self-determination and the right to involve oneself in something that will go on in your own backyard. I would like to know if you have some alignment with that in terms of those rights and the ability to seek consent.

[20:13]

It’s interesting, as you were talking I was reminded of a few different folks who testified at the committee. We did have some Indigenous business people. By and large, they were not in favour of Bill C-15 and cited this issue of FPIC as being a big concern for them. What does it mean?

At the end of the day, the hard work is going to be getting something that will allow every community, as you’ve said, and particularly in linear projects, where you have to get 30, 40 or 50 communities on side, to all be given the resources and the time to come to their own decisions around an FPIC process and how they will access expertise, because they will not take the proponent’s word for it. And it will be the same, whether it’s an Indigenous business trying to do something or a non-indigenous business trying to do something. That was the concern we heard on both sides.

Let me tell you another thing that was interesting. Senator Plett talked about Brian Schmidt, CEO of Tamarack Valley Energy, a very successful mid-sized oil and gas producer in the West. Brian is an honorary chief. He grew up on a ranch beside the Piikani Nation. He expressed the FPIC concerns. We got into a dialogue and one of the things he said I found interesting. He believes that over a short period of time things will pivot so that large projects will be led by Indigenous communities and Indigenous enterprises, and it will be the responsibility of industry to support them. I thought that was a sage observation and goes to what you’re talking about. Thank you, senator.

Senator Klyne
[20:15]

Thank you.