Bill C-15 (Historical)

United Nations Declaration on the Rights of Indigenous Peoples Act

An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples

This enactment provides that the Government of Canada must 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 must prepare and implement an action plan to achieve the objectives of the Declaration.

United Nations Declaration on the Rights of Indigenous Peoples Act

[Leah Gazan, NDP, Winnipeg Centre, MB]

Madam Speaker, I would like to thank my friend and colleague across the way for his tireless work in the previous Parliament to see this almost realized.

I was really pleased to see Bill C-15 amended to include paragraph 18, to include the constitutional principle of the living tree doctrine, which confirms that aboriginal and treaty rights evolve and grow over time. As I mentioned at committee, I would have preferred that this amendment be included in the operative articles of the bill as proposed by, for example, the Assembly of First Nations and the original drafter of Bill C-262.

Would my hon. friend have preferred the same, that this amendment be included in the operative articles of Bill C-15?

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Madam Speaker, it has been a pleasure working with my friend from Winnipeg Centre on Bill C-15 and to get it to this point. What I am looking for and I think what the government is looking for and what I think all of us are looking for is passage of Bill C-15 in this Parliament.

It is imperative that we move forward on reconciliation as indicated by the call to action 43 of the TRC. In many references, the need to ensure that Canada adopts UNDRIP is essential. Therefore, we could always reflect and say we could have done better here and here, but what is important is that we get the bill done, as the bill would ensure the principles that my friend opposite mentioned are incorporated. I believe that would be a very significant move in passing the bill. What is important for us now as Parliament, is to pass Bill C-15, as amended by the House, which has taken a great deal of effort by all members of the committee—

[The Assistant Deputy Speaker, Carol Hughes]

I would like to go to another question.

Questions and comments, the hon. member for Kingston and the Islands.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Madam Speaker, perhaps the parliamentary secretary can conclude his thoughts in answering my question.

This is something that the United Nations adopted many years ago. We are finally getting to this point. There have been attempts in the past. This really means something for not just indigenous people but for all Canadians.

Can the parliamentary secretary comment on what he sees as the potential impact of passing this piece of legislation, and why it is so important to do this as quickly as possible?

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Madam Speaker, that is a very important question, because this is a call to action of the Truth and Reconciliation Commission report. This is one of the key elements that is in there in call to action 43, which says that Canada has to implement UNDRIP.

It is important for indigenous people, but it is also vitally important for all Canadians because it is a statement to the world that Canada respects and adheres to indigenous rights. It is a very important international human rights document that we are reaffirming today through Bill C-15. It is very important for all people in Canada to be able to move forward from our colonial past, where many indigenous peoples have been significantly affected, to a future that is positive and based on trust and a positive relationship.

[Gary Vidal, Conservative, Desnethé—Missinippi—Churchill River, SK]

Madam Speaker, my question for the parliamentary secretary is quite simple. Dale Swampy from the National Coalition of Chiefs, whose mandate it is to reduce on-reserve poverty, said:

I think UNDRIP is important and significant in many ways, and I obviously support indigenous rights. However, I am skeptical about Bill C-15 itself. I think it needs to be written much more carefully, because as it is drafted today, it is obvious to me that it will deter investment in Canadian resource development, and that hurts the indigenous communities that rely on resources.

The Indigenous Resource Network, the Indian Resource Council, and First Nations LNG Alliance all expressed similar concerns.

Would you accuse these people of fearmongering when they expressed reasonable concerns?

[The Assistant Deputy Speaker, Carol Hughes]

I want to remind the member that he is to address all questions and comments to the Chair.

The hon. parliamentary secretary.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Madam Speaker, I would like to thank my friend, who is also a member of the committee, for his work and contribution to Bill C-15.

All I can say is that what is important is that there were extensive consultations in developing Bill C-15. Regarding all the organizations that are mentioned, input was taken, whether at the committee stage or prior to that, and their input reflects what we have. It is a consensus document that the three national indigenous organizations have supported and many other indigenous partners and nations have endorsed. Therefore, we are very comfortable in saying that this is a consensus document that does have wide support of indigenous peoples.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Madam Chair, I am happy to add my voice to this debate around Bill C-15.

I recognize that it has been a long and arduous battle to get the Declaration on the Rights of Indigenous Peoples passed through the UN, and I also recognize the work of Romeo Saganash, with whom I had the privilege of sitting on committee in the past. I developed a friendship with him, and it was a pleasure working with him on committee.

Bill C-15 is an interesting bill. It is a severe case, in my opinion, of a lack of doing what one says and saying what one is doing. This seems to be typical of the Liberals. They say they are doing something when in fact they are not, or they are doing something when they say they are not doing something. Again, Bill C-15 is one of those and, in my opinion, does just that. Conservatives typically say what they mean and mean what they say, and if we do not mean it, we do not say it.

One thing that is frustrating for me about this particular bill is that this is new, uncharted territory in terms of clause 4 of the bill. I think the crux of the bill is in clause 4, which says:

The purpose of this Act is to

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

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

What is frustrating about it is that I think that the declaration is a universal international human rights instrument, and I also think that it has application in Canadian law, with or without the bill stating it.

I use the Palermo Protocol extensively, which is a UN protocol used to identify victims of human trafficking. The Canadian government, being part of the UN, can use these protocols or declarations to validate whether or not our laws fall inside these frameworks. We use them as an instrument to assess Canadian law, which would be no different for UNDRIP.

The same goes for the UN Declaration of the Rights of the Child. Again, we use that declaration to assess Canadian law. We take the Canadian laws on the rights of children and the protection of children and we stack them up against the UN Declaration of the Rights of the Child to see if we are abiding by and meeting the thresholds that are laid out in the declaration. If we are not, then we attempt to bring Canadian law into alignment.

I have been working on that around the Palermo Protocol here in Canada, putting forward bills and trying to get Canada's laws to totally align with the Palermo Protocol. We are in significant alignment, but we are not 100% there, and that is also the case with UNDRIP. It is an instrument against which we can assess Canadian law to see if we are living up to the expectations that are laid out in UNDRIP. Are we living up to the ideals that reconciliation would bring? Nobody has a problem with that.

What Bill C-15 proposes is unique, because no other UN declaration has a legislative declaration with application in Canadian law. When I asked the Department of Justice officials about this at committee, they said that I was correct, that it is a unique thing. The Declaration of the Rights of the Child does not have a legislative declaration that we are recognizing as an instrument in Canadian law. However, when arguing a case in court, one can bring a UN document, a UN declaration, to the court and say, “Hey, the UN says this and therefore this is a piece of evidence for my particular case.” What I am frustrated about with Bill C-15 is that it would not change the application of UNDRIP in Canada.

Some witnesses came to committee and said this was like a bill of rights for indigenous people. We were assured again by the justice department this was not the case. This is not granting a bill of rights for indigenous people. This is a framework to develop a plan, and that is what this bill is all about.

If that universal human rights instrument, UNDRIP, had application in Canadian law, would it be actionable? One of the things I asked repeatedly was whether one could take the government to court if it failed to meet one of the objects of the declaration, and I was once again assured that this was not the case. Therefore, what changes with this bill? If this is such a monumental change to the way Canadian law is happening, as the Liberals would like us to think, then what would actually change? That is extremely frustrating.

The Liberals continue to say we are fearmongering, which is also untrue. We just want to know if the things the Liberals are saying are in fact true. If this is going to change the way Canadian law operates, then what are those changes? The bill does not explicitly say that, to me. It says that we are going to develop a framework.

The big crux of a lot of the issues we deal with is around FPIC, or free, prior and informed consent, and what it means. One of the things we continually asked was about the Canadian government, the years and years of jurisprudence, the court cases that have been fought and won in this country around consultation, and the term “duty to consult”, how all this is laid out and how it would fit into UNDRIP.

I would say we are well on our way to developing systems in Canada that fit in with UNDRIP and come into free, prior and informed consent. As our laws develop, with requirements to consult, we see companies going out and consulting. I would say we are well on our way. When I hold up the instrument of UNDRIP against our free, prior and informed consent laws and court rulings, those are all things we can consider.

All this bill would do is create uncertainty. It would bring in a new element. It says that perhaps these articles of UNDRIP are now Canadian law, so does duty to consult equal free, prior and informed consent, or does it not? We could have that debate and argument, but at this point we just do not know. There is a lack of clarity around that. That is what is being introduced with this bill. What is free, prior and informed consent, and how does it relate to duty to consult?

We have seen in this country that this has caused uncertainty in the marketplace. The Government of British Columbia has adopted UNDRIP in a similar fashion, again without clearly defining the terms, and there is now a 1% premium placed on investment in B.C. There is a risk premium to doing business in B.C. because of that, and the markets have deemed it to be about 1%, a lack of 1% return on it, which is a challenge. If one is going to the marketplace to raise capital for a project, one will have to pay 1% more to bring capital into British Columbia compared to the rest of the country. When people say there is no risk to this, no uncertainty, there obviously is, and that is the frustration about this.

I go back to the point that one should mean what one says and say what one means. Where does FPIC come up in this bill? It does not really come up in this bill. It comes up in the document and this declaration having a universal application in Canadian law, but again, what does that mean? We know that all it is doing is driving uncertainty. It is not allowing us to hold up UNDRIP as a document for criteria by which we should judge Canadian law. That is continually frustrating as we go forward.

We heard extensively from Canadians from across the country around this bill at committee, and it is also interesting that the Liberals seem to have a distinct side that they come on when it comes to consultation. We would hear them today talk about how they had extensive consultation even in the development of this bill, but I would say that initially, when we first started reaching out to folks around this, they had not been consulted on this bill. It was not until the bill had been introduced that they began doing the consultations, so by the time it reached committee, yes, some consultations had been done and folks were giving their nod toward the bill, but up until that point there had not been extensive consultation in the development of the particular bill.

That was seen in that every organization that came before us had an amendment for the bill, and that was increasingly obvious. All of them came forward and had amendments, despite the fact that they all acknowledged that UNDRIP is a useful tool and that UNDRIP is something that they hope Canadian law aspires to. I am not convinced this was something they were all expecting when we had the implementation of UNDRIP in Canada. A plan for a plan is not the implementation, so it is going to be more and more interesting to watch how this unfolds.

We have also seen at committee that the government amended its own legislation. That also seems to me to be a point where the consultations were not done appropriately on the front end. If the government had indeed consulted broadly, as it said it had, we would have seen that this bill would not have had amendments by every organization that came before us, and also that the government would not have had to amend the bill itself. It seems to me that there was a complete lack of consultation.

The other thing that I would like to point out around the government and its consultation record is that it only seems to consult in the direction in which it wants the answer. We see this over and over again with first nations communities in northern Alberta. Many of them had a stake in the northern gateway pipeline. We have seen how their communities were thriving off the construction and the capital stake that many of them had in the construction of that pipeline, and yet we saw that pipeline cancelled after the shipping ban off the west coast in Bill C-48, and there seems to have been no consultation with them whatsoever as to the impacts of that decision on their communities. We see that today unemployment in northern Alberta is among the highest in Canada. Why is that? Is it because the government failed to consult with first nations and did not adequately recognize the impacts on these communities?

Again, this is an area where the government says one thing and seems to do another. The idea of consultation is only important in a particular direction, or when trying to stall a pipeline project rather than get one built. That was and continues to be extremely frustrating for first nations communities across northern Alberta.

There are still many questions left unanswered as we go forward. As the government continues to pursue its implementation of the declaration, we will continue to have a discussion on what FPIC means, because there is no clarity. Nobody has said that our duty to consult and FPIC are equal. We are even lacking a bit as to who the final arbiter of this decision-making is. I would say that the Government of Canada is the final arbiter when it comes to major projects. It is the final arbiter when it comes to many of these things that get brought forward, and that is important.

We do not necessarily have clarity from the government. We would like to see that for sure. When pipelines get built, when the federal laws of Canada are designed and when Parliament makes decisions, those decisions are supreme in Canada. We would like to see FPIC clarified as we go forward. Those are some of the things folks brought to committee and said they were concerned about.

The other interesting thing is how this applies between federal and provincial jurisdictions. The bill sometimes says “Canadian law”. Does that mean provincial law as well as federal law, or does it just mean federal law? We need to ensure that is clarified as we go forward, and I hope the government is able to answer some of these questions.

As we hear from more folks on this, it is interesting that there is not even unanimity within first nations communities. The O'Chiese First Nation in Alberta, Treaty No. 6, rejects Bill C-15 outright. It said it would undermine its position in Canada and is opposed to it entirely. The government did not seem to acknowledge that individual first nation communities were not in favour of Bill C-15.

The government consults with the three major national indigenous organizations, but does not necessarily consult with individual first nations across the country. Something I hear over and over from individual first nations is that the government needs to listen to individual first nations across the country in addition to the national organizations, because national organizations do not always speak for individual bands. That is another major concern we heard as well.

We are looking for clarity on a number of things, and this bill would not do anything to clarify any of these issues. This bill would put us on a path forward to align Canadian law with UNDRIP, which I am in favour of, but it would not necessarily do what the government is saying it will. It does not say this will be the next step in bringing us in line with that. The bill just says it is going to develop a plan to do it, and that is frustrating.

I was hoping the government was going to move in the direction of aligning Canadian law with UNDRIP and that it would give us some clarification, such as indicating where Canadian law aligns with UNDRIP on point 43, for example, or giving its opinion on the duty to consult on FPIC, whether it is an adequate or less-than-adequate measure. It might give indications of some of the improvements it is going to make on duty to consult to bring it in line with FPIC. FPIC means something. If the government is insistent that it does not mean a veto, what does it mean? What does that consultation piece look like? Does the jurisprudence on duty to consult still stand?

Those are some of the things I would have expected to see in a bill that would have ushered in UNDRIP. Nonetheless, we do not see these in this bill. There are some less-than-clarifying statements in this bill.

[Gary Anandasangaree, Liberal, Parliamentary Secretary to the Minister of Crown-Indigenous Relations]

Madam Speaker, UNDRIP was adopted by the UN General Assembly 13 years ago. Shortly after the Liberals formed government in 2015, we endorsed it and agreed to implement it.

At what point will the Conservative Party formally say it will adopt UNDRIP, whether by legislation or by other means? At what point will the member's party and leader adopt and accept the terms of UNDRIP?

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Madam Speaker, in 2010 the Conservative Government of Canada signed on to UNDRIP. It recognized UNDRIP as a universal declaration of human rights that was useful in Canada. We called it an aspirational document, much in the same way that many UN instruments and declarations are used here in Canada. Earlier, I referenced the Palermo protocol and the UN Convention on the Rights of the Child.

We have been at the forefront of reconciliation in this country with an apology for the treatment of first nations by residential schools, with bringing in marital benefits for indigenous women when it came to property rights and many other things. We are working hard to ensure that first nations have full participation in the Canadian economy. I am very proud of the work that we have done and I will look forward to continuing to bring reconciliation to this country.

[Sylvie Bérubé, Bloc, Abitibi—Baie-James—Nunavik—Eeyou, QC]

Madam Speaker, I would like to thank Romeo Saganash for introducing Bill C-262, which unfortunately died on the Order Paper, but is being resurrected as Bill C-15 in spite of what the member said in his speech.

Experience shows that lack of consent to project development is often the cause of indigenous crises. That is what happened with the Oka crisis and again this winter with the Wet'suwet'en.

Can the member tell us what is problematic about ensuring that natural resource development projects are carried out properly and in accordance with the principle of free, prior and informed consent?

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Madam Speaker, that is interesting. The member brings up the Wet’suwet’en people. That is an extremely interesting discussion, as the elected chiefs were entirely in favour of that particular project and the hereditary chiefs were not, yet the government chose to consult not with the elected chiefs but with the hereditary chiefs.

This is exactly what we are dealing with. Who is to be consulted, and in what capacity are they to be consulted? Who is the representative of first nations people and Inuit and Métis people? Who gets the right to decide? Many of those questions have been answered through the courts, over time, with the duty-to-consult apparatus that we have in this country. It is not necessarily perfect, but it is a start and we are working on it.

The way that the government handled the Wet’suwet’en situation has been terrible for investment in this country and also for the rights of the democratically elected chiefs of the Wet’suwet’en.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Madam Speaker, I find it peculiar that this member holds indigenous people to higher standards for democracy, with every indigenous person having to agree to pass anything. If we were held to the same standards, we would never have another government in Canada.

My question relates to international trade law. As the member is aware, international trade law obligations require us to divulge any risks to investment. The member spoke a lot about investments. When Canada fails to divulge, for example, that vast tracts of indigenous lands are still under dispute, are we not negotiating free trade agreements on a lie? When we do not divulge this information are we not, in fact, breaking the law?

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Madam Chair, the Canadian Constitution applies clear across the country. I do not think the member is disputing that. Whatever she is talking about in terms of our trade disputes, I do not think that Bill C-15 would clarify any of that. If anything, we would end up in an area of less clarity than before.