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.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Thank you so much, Chair.

I'd like to welcome all the guests here today to committee.

Can you explain your understanding of subclause 2(2) of Bill C-15? It refers to section 35, and some people claim that because of that, the bill won't have any impact. Is that accurate? The question is for either the national chief or Madam Turpel-Lafond.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you, Chief Bellegarde and Ms. Turpel-Lafond.

I would like to ask another question. Ms. Turpel-Lafond said that certain comments about Bill C-15 indicate that some people would be afraid if it were passed. I find that very interesting.

Ms. Turpel-Lafond, can you tell us more about those comments, which are not really objective? Can you re-state the facts about the bill?

Have you noticed anything else that is problematic in the discourse around the bill?

[Dale Swampy, President, National Coalition of Chiefs]

Good morning.

Thank you for the opportunity to speak to you today on the study of competitiveness in Canada.

My name is Dale Swampy. I'm a Samson Cree Nation member and a COVID survivor. I'm honoured to be presenting to you from the traditional territory of the Tsuut'ina Nation and the Treaty 7 first nations in southern Alberta.

I'm the president of the National Coalition of Chiefs, or the NCC, a coalition of industry-supportive chiefs. Our mandate is to defeat on-reserve poverty through participation in our country's development of its natural resources. We work in co-operation and in partnership with natural resource proponents in an effort to enhance the economic prosperity of reserve communities. We also support indigenous-led natural resource projects.

I appreciate that you have included an indigenous perspective on the panel today, because Canada's ability to attract investment is a major challenge, more so today than at any other time in our country's history.

As you are aware, Canada has experienced a significant loss in its ability to compete on the international market, as well as within its own boundaries. We are no longer able to trade effectively even between our own provincial borders. Many would agree that this is a direct result of restricting regulatory barriers that have been introduced over the past few years.

For example, we believe the tanker ban, or Bill C-48, was passed in order to ensure that Alberta's oil does not cross the borders of British Columbia and on to tidewater. International trade of our most valuable commodity would have increased the standard of living of all Canadians, including first nations. First nation communities in B.C. and Alberta lost $2 billion in benefits when the northern gateway project was cancelled. The cancellation had no effect on world greenhouse gases. It only created uncertainty for would-be investors in Canada's economy.

The new national regulatory regime, or Bill C-69, was forced onto an existing regulatory process, the National Energy Board, which was already a world leader in safety, integrity and environmental protection. We feel there was no need to amend this process.

The new UNDRIP legislation, Bill C-15, will create additional uncertainty and legal ambiguity in an economy that is already hindered by major project delays caused by lawsuits that challenge our own Constitution. The NCC has already expressed its issues and concerns regarding this legislation, and has asked, through its participation in hearings, that the federal government consider alternative legislation to fulfill its promise for reconciliation with first nations in Canada.

The NCC believes that increased indigenous community participation in the natural resource industry, through employment, contracting and ownership, will increase Canada's competitiveness. We want the federal government to give first nations a share in ownership and control of Canada's natural resources in a manner similar to what the U.S. gave the 13 tribes in Alaska.

Who better to give ownership of natural resources and natural resource development than first nations. Our people have lived on this land for thousands of years. We respect and want to protect the land. Many people will come and go, but first nations people will never leave this land. We have a spiritual tie to the land. We will never sell our lands or resources. Since 1971, the Alaskan tribes have had the authority to sell their lands and resources, and not one tribe has ever considered selling their land.

We have missed out on 150 years of natural resource development in this country, along with countless billions of dollars' worth of projects, projects that would have supported thousands of jobs in indigenous, rural and remote communities. It is time for Canada to grant first nations the right and ownership of their natural resources.

Instead of using new legislation, such as UNDRIP, as a form of reconciliation, the NCC requests that the federal government consider an act similar to that of the Alaskan tribes, which will provide ownership of lands and resources currently owned by the Government of Canada.

In 1996, the Royal Commission on Aboriginal Peoples, in a report issued by the Liberal Party under the leadership of Jean Chrétien, recommended that the federal government grant to aboriginal peoples of Canada 30% of all the lands and resources owned by the federal government as a form of reconciliation. Through this report, the federal government possesses the ability and justification to grant this to all first nations in Canada.

We are hoping your study will provide our chiefs with an opportunity to create a reconciliation process that provides real and tangible benefits for first nation communities and supports Canada's economic growth and competitiveness. Together we can defeat on-reserve poverty.

Thank you, and I look forward to your questions and further discussion.

[Dr. Mary Ellen Turpel-Lafond]

First of all, we all know how hard fought it was to add the rights to into the Constitution Act in 1982 in section 35, as well in section 25 of the charter. Unfortunately, the history of the last 40 years has been one where indigenous peoples have had to fight hard for the recognition of their rights, including recognition of their title.

A lot of that jurisprudence has been really hard because, for some of us who have been involved in those cases, the Crown has taken a very adversarial and hostile approach to the existence of the rights of indigenous peoples, and it has been a challenge. Section 35 of the Constitution Act is a very important provision that indigenous people fought hard for. While it has been interpreted mostly by courts, where there are no indigenous people present, those rights are very important.

The declaration as an international instrument is there to assist us to have a better discussion about the right of indigenous people in section 35, because the declaration brings good information and value in terms of what the standards, principles and rights should be.

In my view, the declaration is a way of interpreting our constitutional rights that gives us a better set of understandings of how to frame issues for indigenous people. I know that the national chief has spoken a lot about the issues of racism and discrimination.

If we look at article 2 of the UN declaration, which says that indigenous people have rights like all other human beings, including the right to be free from discrimination, I'm sure no one on this committee would disagree with that, but that isn't expressed very clearly in our charter or in our Constitution and needs to be reinforced, because we have seen very much, for instance during this pandemic, how much systemic discrimination and racism indigenous people are experiencing.

The Constitution of Canada is there. Those rights are there. They are important, but the declaration provides through this bill an opportunity to promote a more reconciliation-focused approach to get away from the highly conflictual, adversarial approach and to shift to recognition of rights. It's extremely valuable legally, but it does not in any way take away from the constitutional rights of indigenous people, and there is a non-derogation clause in Bill C-15. The national chief has tabled some suggestions on how that should probably be strengthened to better reflect Bill C-262 based on the concerns of first nations. There is delicate balancing when we implement international laws, and Bill C-15 does support that.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Maybe I could jump in quickly to clarify some misconceptions. It's not that we as Conservatives believe that UNDRIP or Bill C-15 will mean that the bill is against development. That's not what we're saying. We're asking about this because there's no clear definition. When a first nation says no to a project, does that mean the project is dead, or does the government have the authority to make a final decision?

I'll open the floor to anyone who wants to answer.

[Jamie Schmale, Conservative, Haliburton—Kawartha Lakes—Brock, ON]

Thank you very much, Chair.

Thank you to our witnesses for being here. It's a very important conversation. As has been pointed out in many speeches in the House of Commons, the Conservative party does support the goals and aspirations of UNDRIP. We do have some concerns with it—I don't think that is any secret—in terms of free, prior and informed consent and what that actually means.

Chief Bellegarde, maybe I will start with you if that's okay.

You have stated previously that first nations communities have the right to say no to projects. I would like to understand what that means.

The Government of Canada currently has the authority to make final decisions with respect to the approval of major projects after meaningful consultations with indigenous rights holders. Its current role involves giving due considerations to the concerns and interests identified by different rights holders, and making a decision balancing those interests and the interests of the broader Canadian society.

I guess my first question to you, sir, is whether you believe that Bill C-15impedes the government's authority to make a final decision if an indigenous community says no.

[National Chief Perry Bellegarde, Assembly of First Nations]

Thank you, Chair, and thank you to all of the committee members for agreeing to the 15-minute time.

[Witness spoke in Cree as follows:]

Nista mîna pikiskwêmêw apisîsi-ninanâksomon. Kinaskomitinâwaw kahkiyaw nitotêmtik niwahkomâkanak. Nista Okimâw Piyisiw Awâsis sihkâstêw. Kaskitêw Maskohsis ohci niya Treaty Four Territory. Nista mîna Nohtâwinân Kisê-Manitow kinaskomitin. Algonquins ôma Odawa kinaskomitinawaw.

[Cree text translated as follows:]

I also want to express a little thankfulness. I thank all my relatives.

I am also called Chief Thunderbird Child. I am from Little Black Bear Treaty Four Territory. I also want to thank the Creator. To the Algonquins here from Odawa, I thank you all.

[English]

That was just a little bit in Cree for my friends and relatives.

I'm very happy to be here with all of you.

I used one of my spirit names, King Thunderbird Child. That is one of the names I carry. I'm from Little Black Bear First Nation and Treaty 4 territory in southern Saskatchewan. I gave thanks to the creator for this beautiful day and I acknowledged as well the Algonquin peoples here in the Odawa territory, where I'm sitting and working from today, their ancestral lands.

Chairman Bratina and honourable committee members, thank you so much for this opportunity.

I also want to acknowledge Mary Ellen Turpel-Lafond, who is with me on this presentation, and Willie Littlechild as well. I acknowledge them and thank them for their work.

Our Assembly of First Nations has long supported the adoption of a clear and strong legislative blueprint to advance the implementation of the United Nations declaration.

I appeared before this committee three years ago to support the adoption of Bill C-262, the private member's bill brought forward by Romeo Saganash, so I'm very pleased to now speak in support of a government bill that builds on the foundations of Bill C-262.

The Assembly of First Nations chiefs-in-assembly have passed numerous resolutions calling for the full implementation of the declaration. These resolutions included support for the adoption of Bill C-262.

When a filibuster prevented Bill C-262 from coming to a final vote in the Senate, where it did have sufficient support to be passed, our Assembly of First Nations chiefs-in-assembly passed a resolution in December 2019 calling for a government bill as strong or stronger than Bill C-262. That's my mandate. That's the direction the chiefs of Canada gave me as national chief: to get a government bill that's as strong as Bill C-262.

Bill C-15 meets that test. Bill C-15 provides a principled and pragmatic path forward to ensure that Canada respects and upholds fundamental human rights that have been affirmed and reaffirmed by the international community many times through consensus resolutions of the UN General Assembly.

I want to emphasize that the declaration did not create new rights, and neither does this proposed new bill. They also do not impinge on or detract from any inherent or treaty rights.

When I testified before this committee about Bill C-262, I felt very strongly that a collaborative and coordinated approach to implementing the declaration was critical to closing the social and economic gap facing first nations people.

Today, I am even more convinced that implementation legislation is the right way forward. I also applaud the work of elected officials in other jurisdictions who have taken steps to implement the United Nations declaration and note the chiefs' work with British Columbia in achieving the unanimous passage of a law in the Legislative Assembly of British Columbia on November 28, 2019.

Given the deep racism and discrimination that first nations still face every day, Bill C-15's critical commitment to combat all forms of discrimination makes this bill both timely and urgent. I have seen how in B.C., with the implementation of the declaration, important work has been undertaken to address the racism against indigenous peoples in the health care system, using the standards in the declaration to bring people together in the health care system.

Now, we know that every bill can be improved. Since the tabling of Bill C-15, we have heard critiques and suggestions for improvement—most importantly, from indigenous peoples ourselves. Some AFN regional chiefs and first nations leadership have appeared before you and have identified areas for improvement from their regional perspectives. You should listen carefully to those positions. In Canada, some first nations are in support of Bill C-15 and some are against Bill C-15, while others support it with amendments.

What I am tabling today is a contribution from the Assembly of First Nations that constitutes some relatively straightforward suggestions for improvements. These are intended to respond to the overall objective of first nations to make the bill stronger and clearer. So this is indeed an historic moment.

The Truth and Reconciliation Commission of Canada looked closely at the UN declaration and concluded that the declaration was “the framework for reconciliation at all levels and across all sectors of Canadian society.” They set that out as their first principle of reconciliation. That's how important the declaration is as a source of guidance and as a foundation for action.

Canadians have embraced the cause of reconciliation; implementation legislation is crucial to bringing that commitment to life.

With the improvements we've tabled, Bill C-15 will better enable us to move forward in a collaborative and coordinated way, consistent with first nations treaty and inherent rights and Canada's legal obligations.

I'd like to review those 12 improvements right now.

Number one is preamble clause 6. It's our recommendation that this provision is not accurate and should be deleted.

Number two is preamble clause 8. It's our recommendation that the word “racism” be added to this clause. Racism is a critical daily concern for first nations, and we believe strongly that it should be named.

Number three is preamble clause 9. It's our recommendation that the paragraph include explicit reference to the doctrines of discovery and terra nullius, and to be clear that, as the Supreme Court of Canada said in the Tsilhquot'in Nation case in 2014, these doctrines should not be part of the law or policies of Canada.

With regard to clause 2(2), it's our recommendation that the non-derogation clause be revised to more accurately reflect the working of the UN declaration, article 37, the previous approach in Bill C-262, and wording has been provided for you to consider.

Number five, it's also recommended that you consider adding two new clauses in the interpretation section, clause 2, to avoid any confusion or misinterpretation on some matters of great importance to first nations. The first of these two new clauses is clause 2(4):

For greater certainty, the rights of Indigenous peoples, including treaty rights, must be interpreted flexibly so as to permit their evolution over time and any approach constituting frozen rights must be rejected.

This provision is important because we cannot permit interpretation of treaty rights or any of the rights of indigenous peoples as frozen in time. Approaches that reflect stereotypes and old ideas, especially on treaty rights, must be overcome as an ongoing obstacle to moving forward.

Number six, and the second of the two new clauses, is 2(5):

For greater certainty, nothing in this Act is to be construed so as to diminish or extinguish the rights of Indigenous peoples, including treaty rights.

This provision makes it clear that extinguishment of the rights of indigenous peoples is not acceptable under any circumstances and cannot be part of Canada's laws or policies. Indigenous peoples have been subject to policies that sought to extinguish our rights and identities, such as the residential schools and other unilateral crown policies. Extinguishment is a systemic barrier to reconciliation that Canada must permanently and clearly reject.

Number seven, it's our recommendation that the subtitle for clause 4 or the purpose section is incorrect and it should be titled “Purposes”. Romeo Saganash spoke to this issue in his appearance on March 11. This is an obvious grammatical problem, but could lead to inaccurate interpretation in the future and should be fixed, as it has been flagged by first nations as a concern. I urge you to correct this at this study of the bill by committee members.

Number eight, in this same clause, it's recommended that the word “framework” be removed. As acknowledged in the preamble of this bill, the UN declaration itself is the framework, and reference to other frameworks simply cause confusion.

Number nine, I also note that the reference to the “Government of Canada” in the purpose clause 4 must be removed because Canada's obligation extends not just to government, but to Parliament, and this wording as it currently reads is inaccurate. The phrase “Government of Canada” could simply be removed, and I recommend you do that as we show in the table submitted.

Number 10, it is recommended that the time frame set out in clause 6 for the action plan be reduced from the three years to two years. Implementation is already long overdue. Canada should have begun implementing the declaration when it was adopted as a global minimum standard in 2007. Canada has been committed to implementing the declaration without qualification since 2017. I don't think it's necessary to wait another three years.

Number 11—which is similar to the preamble provision in number eight—the recommendation is to add the word “racism”. This word also must be added to paragraph 6(2)(a), as the wording is tracked in both parts of the bill.

Finally, number 12, I recommend that the words “implement”, “implementing” and “implementation” be used in the bill only in relation to implementing the declaration. For all other uses, I recommend that expressions like “carry out” be substituted, and you will see those suggestions in the table attached. If I have missed other examples, as the First Nations Leadership Council of British Columbia has indicated in their submission to you, I recommend that we adopt those recommendations to ensure that the entire bill is corrected, so that “implementation” is only used in relation to implementing the declaration.

Bill C-15 deserves the support of this committee and the support of all members of Parliament and senators. In my view, the improvements we have brought forward are modest and reasonable, and I urge you to adopt them when your committee gets to that part of your deliberations.

To conclude, I want to be very clear. The AFN is eager to see Bill C-15 move forward to final votes in the House of Commons and the Senate as soon as possible. First nations leaders and legal experts like Chief Littlechild poured their heart and soul into the creation of the declaration. They did this for a reason. They went to the United Nations year after year for more than two decades because they saw this international human rights instrument as key to building a new relationship with Canada.

Canadian government officials were also active participants through that long process at the United Nations. In fact, Canada deserves a lot of credit for helping to build support among other states so that the declaration could be finalized and adopted. This is something that we accomplished together and something that Canadians can be proud of. Yet, despite what was accomplished, more than 13 years have passed now since the declaration was adopted by the UN General Assembly, more than 13 years since the UN proclaimed the declaration as “the minimum standards for the survival, dignity and well-being of the indigenous peoples [in all regions] of the world.” In this time we have had expressions of support for the declaration from federal, provincial, territorial and municipal governments of all political stripes.

Canada has been part of numerous consensus resolutions at the UN committing to domestic implementation. Canada has made commitments to the indigenous peoples of the world that it would implement the declaration. It's time to complete this and make good on these commitments by working together. Canada has added the commitment to implement the UN declaration into the text of other laws passed by Parliament, including important bills on the inherent right of self-government in relation to child welfare and indigenous languages. What we still lack, however, is the legislation that implements the declaration and sets us on a course of recognition of rights and provides a framework for reconciliation, as the TRC wisely called for action. Bill C-15 provides that path. It's important for first nations, and I believe it is important for all Canadians to seize this opportunity now. We need to hear the words “royal assent” before the end of June.

Thank you. Kinanaskomitinawow.

[The Chair, Liberal, Bob Bratina]

I call this meeting to order.

I will start by acknowledging that when in Ottawa, we meet on the traditional unceded territory of the Algonquin people. Here, where I am, is the traditional territory of the Anishinabe, Haudenosaunee and Chonnonton first nations.

Pursuant to Standing Order 108(2) and the motion adopted on February 25, the committee is continuing its study of the subject matter of Bill C-15, an act respecting the United Nations Declaration on the Rights of Indigenous Peoples, and to make related and consequential amendments to other acts.

To ensure an orderly meeting, participants may speak and listen in the official language of their choice. The globe icon at the bottom of the screen allows you to select either the floor, English or French. Choose what you want, and if you do speak in two languages, English and French, you don't need to change that. The technology will pick it up.

When speaking, ensure that your video is turned on. Please speak slowly and clearly. When you're not speaking, your mike should be on mute.

Pursuant to the motion adopted on March 9, I must inform the committee that Natan Obed has not completed the technical pretest.

With us today by video conference, from the AFN, are National Chief Perry Bellegarde, Wilton Littlechild and Mary Ellen Turpel-Lafond.

Thank you, all, for taking the time to appear.

The committee is being asked to allow an extension for the witness statement time beyond the current approved six minutes. As chair, I am reluctant to adjust the rule in view of the unfairness to the previous witnesses and the precedent it will create for future witnesses. As well, we have a number of written submissions that have taken more than six minutes to read, which suggests to me that, as we often tell witnesses, any matters or points of view they feel might have been missed or need further emphasis would be accepted after the meeting as supplemental documents to their brief.

In view of this, I now ask the committee for unanimous consent that notwithstanding the routine motion governing time for opening remarks and questioning of witnesses that the AFN be allotted up to 15 minutes for their opening presentation. Those who do not wish to give unanimous consent, please unmute now to indicate so.

Is there anyone who is opposed to unanimous consent for the extension?

Seeing none, we approve the extension for 15 minutes to Mr. Bellegarde and his associates.

Perry, welcome. It's so nice to have this opportunity to hear from the AFN.

Please go ahead for 15 minutes.

[Leah Gazan, NDP, Winnipeg Centre, MB]

Because of the confusion the expression seems to give rise to, what is your understanding of preamble paragraph 18 and paragraph 4(a) of Bill C-15, where it is affirmed that UNDRIP is a source for the interpretation of Canadian law and has application in Canadian law?

[Marilène Gill, Bloc, Manicouagan, QC]

Some people told us that while they supported Bill C-15, they felt that the rights of indigenous peoples were already protected by section 35 of the Constitution.

Do you believe that the passage of Bill C-15 would do anything more? What are the distinctions between section 35 of the Constitution and Bill C-15? What makes the passage of the bill necessary for first nations? Of course, as you said, everyone would benefit from the passage of Bill C-15.

[France-Isabelle Langlois]

The passage of Bill C-15 would benefit not only indigenous peoples, but all of us. When economic development projects are implemented with the consent of the people involved, they are better off and develop better, for the benefit of all.

[Marilène Gill, Bloc, Manicouagan, QC]

Tell me if I'm wrong, but this means that the passage of Bill C-15 and its subsequent implementation would benefit first nations.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you, Ms. Langlois. Actually, you started to answer another question I wanted to ask you.

You talked about the veto and free, prior and informed consent. We have heard several witnesses say that economic development and the passage of Bill C-15 about the declaration are irreconcilable.

What is your interpretation of this situation?

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you, Mr. Chair.

I thank all of the witnesses who are appearing today.

My questions are for Ms. Langlois. I would like to take this opportunity to highlight all the work that Amnistie internationale does.

In your speech, you mentioned that we need to move expeditiously to pass Bill C-15. Perhaps this implies that there may be some difficulties to iron out. We didn't have time to pass Bill C-262; we don't want that to happen again with Bill C-15.

Is it possible to foresee difficulties that might prevent us from acting diligently? What difficulties might not be addressed by the subsequent implementation of Bill C-15?

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

Thank you, Mr. Chair.

I want to thank all of our witnesses for joining us here today. We've received a lot of great testimony over the last few weeks on our study of Bill C-15.

First, Mr. Schmidt or Ms. Joseph—I'll let you both have the opportunity to respond, if you want—I read a brief that you submitted a while back in which you referred to many of the same concepts as in your testimony today. It was about the great work that people in your organization have done with regard to their work with indigenous people and first nations and the relationships and whatnot that your industry has in those communities. You talked about investment. You talked about the contributions that are made.

Last week I made a statement to one of our witnesses that those who champion poverty reduction through economic development often get labelled as lacking compassion. I would see that as the exact opposite. You might want to speak to that in the context of the work your member organizations do in these communities.

Mr. Schmidt, you talked about your own relationship specifically with your company. I'd like you to expand on that a little bit and talk about how the work your organizations do, the relationships you have and the incredible amount of procurement and job creation you initiate in these communities has...on the opportunity to end poverty, create success for many first nations and grant them the opportunity to be successful in the future, investing in things like housing and recreation and the social issues they have. In my community, in my riding, we deal with a lot of suicide crisis kinds of things. The investments made by industry are huge in those kinds of issues in the first nations communities.

I'd like you to speak to that. I would also like you to speak to how the potential uncertainty of Bill C-15 might either contribute to or hinder that in the context of the great work that you've already done.