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.

[Marilène Gill, Bloc, Manicouagan, QC]

Thank you, Mr. Chair. My thanks also to my colleague.

First, I would like to thank Mr. Saganash. I did so earlier but he had not yet joined us. I thank him specifically for the important work he has done over the years and in the last Parliament. He has been working since 1982, as Ms. Lightfoot and Ms. Augustine pointed out.

We are now studying Bill C-15. I know that Mr. Saganash previously worked on a similar bill and that there are differences between the two. I would like him to tell us about those differences, in a qualitative sense. I would like to hear his comments, since they could make our work clearer.

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

Thank you.

To go back to Romeo, I know that one of the conversations we had throughout Bill C-262 was the issue of veto, and the same types of concerns are raised here. Does Bill C-15 represent a veto with respect to FPIC? Maybe you can comment on your position as you outlined previously.

[Romeo Saganash]

First of all, Bill C-15 is pretty much similar to Bill C-262. I think the engagement we've done around Bill C-262 was pretty much thorough throughout the country. I've met with indigenous and non-indigenous communities in town halls to explain Bill C-262 and to explain what the UN declaration is all about, and I've answered the questions or concerns that people had about Bill C-262 at the time.

I can tell you that throughout my travels across the country, I did not leave one town hall, whether indigenous or non-indigenous, where people were opposed to Bill C-262 or the UN declaration. That work, I think, is a legacy in going forward with Bill C-15. We calculated that the indigenous organizations and communities that adopted resolutions of support for Bill C-262 represented approximately one million indigenous individuals in this country. That engagement has been extensive and it was comprehensive, and I think that's a legacy we can take on in moving forward with Bill C-15.

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

On that point, Mr. Saganash, if I google “Bill C-15 UNDRIP”, the first thing that comes up is the APTN article on concerns around consultations on Bill C-15. That's the challenge we are going to have bringing in this as the application in Canadian law.

What's the body that governs the aboriginal opinion in this country, the indigenous opinion? That's going to be the big challenge.

[Romeo Saganash]

Let me say this from the outset: The courts have already confirmed that provision that you read to us. The courts are using the UN declaration—referencing the UN declaration—to interpret domestic law, and that's been going on for many years. Our human rights tribunals, provincial and federal, were using the UN declaration even before it was adopted by the UN General Assembly.

What Bill C-15 does is it confirms what the courts have been saying, and the interpretation in how courts have been using international human rights instruments like the UN Declaration on the Rights of Indigenous Peoples.

What this bill will add, in my view, is that.... As a member of Parliament, you know that the Minister of Justice has an obligation under section 4.1 of the Department of Justice Act to make sure that any legislation, before it is introduced, is consistent with the Charter of Rights and Freedoms. We don't have the equivalent for aboriginal rights and treaty rights in this country. Bill C-15 will provide that.

[Dr. Sheryl Lightfoot]

I'll just close with one sentence, if that's all right.

If Canada is serious about reconciliation, we need a different approach. The declaration is the right foundation, and Bill C-15 provides a clear, sensible process to bring these commitments to life. Thank you.

[Dr. Sheryl Lightfoot, Canada Research Chair in Global Indigenous Rights and Politics, University of British Columbia, As an Individual]

Thank you very much, Mr. Chair.

Good morning to those on the west coast, and good afternoon to those of you further east.

I want to open by acknowledging the lands of the Algonquin people where the hearing is physically being held, then also the lands of the Musqueam people where I have the privilege to work and live and where I am currently sitting joining you virtually this morning.

I'm Anishinabe, from Lake Superior Band of Ojibwe. I am Canada research chair and professor of global indigenous rights and politics at the University of British Columbia.

I had the honour to appear before this committee three years ago, in April 2018, when Bill C-262 was being debated in Parliament. Along with many other first nations scholars, advocates and community members, I, of course, was deeply disappointed by the failure to pass that bill into law.

However, I'm very pleased to be with you here today in hopes that Parliament can soon correct this historic failure and pass Bill C-15. I want to thank you for the invitation to appear today.

International human rights instruments like the UN declaration are developed with the intention that they will be implemented in domestic contexts and in full. In legal human rights scholarship, there is often talk about rights ritualism. In short, this means that states say one thing in the international arena, the human rights arena, and then do something else at home.

In my own academic work as a political scientist, I've observed a pattern that I have referred to as “selective endorsement”. What this means is that some states have attempted to water down the rights in the UN declaration, accepting only some of them for implementation and then self-selecting out of other rights. This is simply not morally acceptable to pick and choose human rights that one will respect while others are left behind.

I want to point out that rights ritualism and selective endorsement, as phenomena, are not limited to any one government or any one political party. Governments of all political stripes have repeatedly broken their promises to indigenous peoples. Treaties have been violated and Supreme Court judgments are at times reinterpreted and occasionally ignored, all the while portraying Canada as a global model for democracy and human rights.

Of course, many out there wonder if Canada is really serious about reconciliation. I've heard some very frustrated indigenous people say, reconciliation is dead.

What are we to do? Do we give up, or do we continue to try to find better tools?

I'm strongly in favour of the implementation model that Romeo Saganash created when he first brought forward Bill C-641 and then Bill C-262 to Parliament. This model, which is the foundation for Bill C-15, has a number of elements that I think are crucial.

First of all, it requires collaboration with indigenous peoples. It also requires concrete action including legal reform and, as has been discussed, the creation of an action plan, and it requires public reporting and accountabilities.

A large part of my own scholarly work involves looking at the comparative experiences of indigenous peoples around the world. I feel that Bill C-15 is advancing the global conversation and setting a very positive example for other states.

When we look around the world, we can see that a number of states have undertaken legal and policy measures to implement the declaration. As was mentioned in the first hour, committee members have heard about the national action plan process being developed in New Zealand, for example.

In addition, several countries in Africa have also implemented national legislation and policies to operationalize their commitments to the declaration. Constitutional reforms have also been an essential step, and Latin America has been especially proactive in this area.

National courts, from Belize to Botswana, Canada, Chile, Colombia, Guatemala, Kenya, Mexico and the Russian Federation have all cited the declaration in legal decisions nationally.

National human rights institutions in countries like Indonesia, Malaysia, Namibia, the Russian Federation and the United States have used the declaration as a framework for monitoring the implementation of indigenous peoples' rights at the national level. The declaration is also being implemented regionally, and examples here include the European Union and the Organization of American States, the African Commission and the African Court on Human and Peoples' Rights. The Inter-American Court of Human Rights has also drawn substantially from the UN declaration.

For more than a decade now, the declaration has been used to set guidelines and standards on the international level. A number of organizations have developed policies and/or guidelines to align with it. For example, and my colleague Professor Gunn mentioned some of these as well, the UN Development Programme, the World Bank, the Inter-American and Asian development banks and UNESCO. Various UN agencies and programs have addressed indigenous peoples' rights as they relate to business practices and commercial activity as well. International treaty bodies for the conventions that were signed are also increasingly utilizing the UN declaration in their assessments of compliance, therefore making the declaration legally binding through those treaties.

Quite simply, Bill C-15 represents the best approach to human rights implementation that I have seen from around the world, bringing all of these various elements together. Passing Bill C-15 into law will set a genuinely positive example for the rest of the world community. I know that other governments and indigenous peoples in other regions of the world are watching this process very closely.

Last week my colleague, Joshua Nichols from the University of Alberta and I published an opinion piece about the unfinished business of reconciliation. The Supreme Court has recognized reconciliation as a constitutional imperative. As Professor Nichols and I wrote, the court meant something much more profound and challenging than simply trying to get along. Reconciliation is about putting inherent rights and title into meaningful practice. As we said in the article, “Up to now, federal, provincial and territorial governments have largely left this crucial work in the hands of the courts. This has been a mistake.”

[Romeo Saganash, As an Individual]

Thank you, Mr. Chair, and good morning.

Good morning to other committee members. Thank you for the invitation to appear at this committee and make some opening remarks before we go into questions.

To date, the United Nations Declaration on the Rights of Indigenous Peoples has been reaffirmed by the UN General Assembly at least 10 times by consensus. That means it was done without a vote. So we can say safely today that no state in the world presently opposes the United Nations Declaration of the Rights of Indigenous Peoples. That's what it means.

Last December the UN General Assembly highlighted that the declaration, “has positively influenced the drafting of several constitutions and statutes at the national and local levels and contributed to the progressive development of international and national legal frameworks and policies.”

The UN declaration affirms, as Professor Gunn mentioned, a wide range of economic, social, cultural, political, spiritual and environmental rights. These rights are inherent, or as we say, pre-existing. So it is urgent for Canada to finally respect and implement those rights in federal legislation.

I am pleased that Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act, is based on my own private member's bill, Bill C-262, and goes further, as a matter of fact, in certain instances. In my countless meetings and conferences across Canada, Bill C-262 received widespread support from indigenous peoples and the general public. It wasn't easy tabling a private member's bill. My first bill on the UN Declaration, Bill C-641 was tabled in December 2014. It was defeated on second reading in April of 2015. In April 2016, I tabled a new and stronger Bill C-262. The House of Commons passed the bill at third reading on May 30, 2018. However, a filibuster by a few senators killed the bill in June of 2019, just a couple of days before the passing of my mom.

Therefore, I fully support Bill C-15 being tabled by the federal government in the House in early December 2020. Government bills can proceed more efficiently, I believe, before the House and the Senate. Bill C-15 confirms the declaration as the minimum standards for the survival, dignity and well-being of indigenous peoples. I would add security to that list. The bill must be implemented in Canada, as preambular paragraph 2 says.

As a survivor of Indian residential schools, I'm especially pleased that Bill C-15 acknowledges in its preamble the calls to action of the Truth and Reconciliation Commission and the calls for justice by the National Inquiry into Missing and Murdered Indigenous Women and Girls, both of which call for the implementation of the UN declaration.

In reviewing Bill C-15, we see that it is important to underline that its 17 preambular paragraphs have significant legal effects. They add important content to the seven operative positions in the bill and they must be fully considered. For example, doctrines of superiority—preambular paragraph 9—which include discovery and terra nullius, are condemned as racist and legally invalid. All forms of colonialism—preambular paragraph 10—are also rejected, and the Government of Canada has committed to advancing relations based on such principles as justice, equality, non-discrimination and respect for human rights.

In the preamble, paragraph 11 emphasizes the urgent need to respect and promote the inherent rights of indigenous peoples. The Supreme Court of Canada has also affirmed our inherent and pre-existing rights in section 35 of the Constitution Act of 1982.

In the preamble, paragraph 12 of Bill C-15 asks that the Government of Canada recognize that all relations with indigenous peoples must be based on the recognition and implementation of the inherent right to self-determination, including the inherent right to self-government.

As indicated in the two international human rights covenants, Canada has an affirmative obligation to recognize and respect our right to self-determination. This obligation has existed, as you know, Mr. Chair, since 1976 when Canada ratified the two international covenants.

In my introductory remarks, I would also like to emphasize two current problems with the current text of Bill C-15. First, in some instances, the English and French versions are not compatible, and this is a problem that must be immediately redressed.

A second problem is in section 4 of the act. As currently drafted, it erroneously conflates two distinct and separate purposes as a single purpose that appears to solely relate to the actual plan. This is patently incorrect and would not be consistent with C-262.

Section 4 should therefore read:

The purposes of this Act are

Followed by (a) and (b).

I think my time is up.

I'm looking forward to the questions from the members of the committee.

Thank you, Mr. Chair.

[Thierry Rodon]

That is exactly what I am advocating. I feel that having a clearer process and a relationship with Indigenous people in which they fully participate will avoid a number of problems, such as with courts, with blockades or with RCMP actions.

I don't know whether you saw the foreign coverage of the RCMP operation against the Wet'suwet'en. But it did Canada and investing in Canada no favours at all. Everyone loses in that kind of situation.

Having a more inclusive process, in which Indigenous people are part of the decision-making, will help a lot. It will not solve all the problems, some will remain. However, it provides a friendlier climate for investors. In New Zealand, the fact that the Maoris are part of the decision-making poses no problems.

Thinking that having Indigenous people participate will limit investments is a narrow point of view. In my opinion, the opposite will be true; it cannot be worse than it is at the moment. I feel that action is required. Bill C-15 is one way of doing it, but it's not the only way.

[Dr. Heather Exner-Pirot]

Yes.

Not just investors, but also other indigenous organizations interested in resource development don't want that uncertainty. The general consensus from the people that we've been able to talk to is that the action plan would be a great vehicle. We have a lot of concrete ideas on things that can make it easier for indigenous people to attract capital, putting the “I” into ESG standards; procurement and things like that. I know our partners do too.

I think that the more the legislation makes clear that the action plan will fully articulate that there's a status quo until the action plan is agreed to, the better. Then you can have the consultation.

I know there's lots of concern that there hasn't been enough time, that this feels rushed, and I think that if there were an understanding that the action plan is the place where we can decide what's going to be different, what's going to change and what are going to be the practical implications of C-15, that would take care of a lot of people's concerns.

I'm sure that if you speak to other people in industry or pension plans, they might say the same thing, but certainly from the perspective of the indigenous organizations we're working with, they have lots of ideas for the action plan and prefer to see that be the vehicle.

[Prof. Brenda Gunn]

Thanks, Ms. Gazan, for your question. I'm going to try to answer it as quickly as I can.

There was included in the original Constitution the idea to try to negotiate additional understanding of section 35 through those constitutional round tables that were going to look at self-government, and those didn't succeed. We've had the very unfortunate situation in Canada where a broad general phrase, “aboriginal and treaty rights”, is what is protected in the Constitution, and with unsuccessful negotiations, you're right, it was left to the courts to determine. We continue to have litigation over the scope of these rights and some negotiations as well.

I do think that Bill C-15 and the UN declaration provide some useful supports, because they help flesh out that general understanding of what aboriginal treaty rights are. There's a whole list of rights that are included with the UN declaration that help us understand. I would just say, importantly, from my perspective, the inclusion of the economic, social and cultural rights as well as civil and political rights is really important, particularly when we think of indigenous women. I think the national inquiry as well as the B.C. inquiry into missing and murdered indigenous women highlight the way in which economic, social and cultural rights are particularly important for indigenous women and to ensure equality. We haven't seen as much success in litigating economic, social and cultural rights in either the Constitution or the Charter, so I do think there's a lot of clarity that can be gained through Bill C-15.

[Leah Gazan, NDP, Winnipeg Centre, MB]

I have a very limited amount of time. The reason I ask is that we know that risk disclosure is a warning you must provide investors, any investment, in terms of following law. I just wanted clarification on that.

My next question is for Ms. Gunn. The 1982 Constitution of Canada recognizes and affirms aboriginal and treaty rights, which is a general concept and has a level of ambiguity, and we know that. This has been a constant issue in defining the concept of aboriginal rights. Do you think that Bill C-15, which affirms the application of UNDRIP in Canada, will lessen this ambiguity?

[Leah Gazan, NDP, Winnipeg Centre, MB]

Yes, thank you, Mr. Chair.

My first question is for Madam Exner-Pirot.

You spoke about three years of uncertainty, because that's the maximum time provided in Bill C-15. You claim that it comes with a cost for investors. I'd like you to comment on risk disclosure in international trade rules, especially in relation to land claims. In this country, areas that are still under dispute, referring specifically to land claims.... Aren't we negotiating international trade deals, then, on a lie?

[Prof. Brenda Gunn]

I can say, from my experience participating internationally, that many indigenous peoples turned to the international arena when there were challenges that they were facing domestically and could not find sufficient resolution.

What I have seen and heard, and even what I continue to hear today when I hear people speaking about Bill C-15, is that it's time to recognize these basic, fundamental, inherent rights of indigenous peoples. We can't keep treating indigenous peoples as lesser peoples. That's why I read out those preambular paragraphs. It's really time for Canada to recognize indigenous peoples as people. There's too much of Canadian law that is based on these racist ideas...in Johnson v. M'Intosh, back in 1823, that indigenous peoples were fierce savages whose occupation was war.

It really should be now in 2021 a time when we start rejecting those ideas and work with indigenous peoples to realize these fundamental human rights.

I think importantly that this bill has a lot of wisdom in that it's not just saying, okay, we're accepting UNDRIP, but it's actually forcing us to come to the table, sit down and come up with a plan to implement it. On these concerns that are being raised, the national action plan, this is the time and place to hash out some of these questions. It has built in the bill itself, in the legislation, a way to address these concerns and not to just say we're concerned that there might be impacts, but to study and come up with a plan that ensures that indigenous peoples and Canadians benefit from development.

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

I don't know if you want to add more, but we all heard the debate in the House of Commons. The government, in its own words, claims C-15 does not provide a veto yet they refuse to actually define what consent is.

To your comments about the concerns and uncertainty, you're right. If you add even a 1% risk factor to some investment, there are many places investors can take their money and resource projects. It doesn't necessarily have to be resource projects. I think it's almost anything. Adding that uncertainty does hurt the economic reconciliation that I think needs to happen as well.