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

[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.

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

Madam Speaker, at the INAN committee we heard a number of witnesses talk about what the benefit might be of having the action plan prepared and presented before we introduced the legislation, and that there might have been some benefit to that because it would have reduced some of the uncertainty and given clarity.

Through you, Madam Speaker, to the member, does he have some comments around that?

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

Madam Speaker, I want to thank my hon. colleague for all the work he does at committee as well. The really frustrating piece around this bill for me is that the Liberals are taking a victory lap, because they say they are fulfilling one of the truth and reconciliation requirements by implementing UNDRIP. In reality they are not implementing UNDRIP: They are putting into legislation a plan to make a plan to attempt to bring in UNDRIP. That is extremely frustrating to me.

Again, to go back to the beginning of all of this, it is the “say what you mean and mean what you say” principle. Bill C-15 does not implement UNDRIP. It provides a plan to develop a plan to start implementing UNDRIP. It is not bringing any clarity to the situation. It is not enabling us to move forward. It just leaves us in the limbo we were in prior to Bill C-15.

[Daniel Blaikie, NDP, Elmwood—Transcona, MB]

Madam Speaker, I listened to the member's speech and did not find it very compelling. I feel like there is a kind of persistent confusion here. On one hand, he said that it is a bill to make a plan to implement a plan, which is silly, and why do they not just go ahead and do it. On the other hand, he said that this is all very complex and not that easy. What is clear to me at least is that the job is not done. We have seen that through the many controversies around projects on indigenous land, and through the frustration and dire need of indigenous people to get access to resources and the things that they need to live well. We are not going to get started unless we start taking those steps.

I am always on board with criticizing the Liberals for not getting done what they say they want done quickly enough, but we are not here, on our side at least, belabouring the complexities of it and having a record of sometimes not supporting moving forward toward a solution.

Which is it? Is this just a plan to make a plan for a complex set of issues? The gist of the member's position is really not clear to me after having spent some time listening.

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

Madam Speaker, the main point is that this bill does not bring any clarity to what it means to bring Canada's law into alignment with UNDRIP. We could have seen a bill that would have explained how we could improve duty to consult and bring it in line with FPIC. We could have seen mechanisms around land disputes. Do current land-dispute resolution mechanisms align with UNDRIP? We could have had a bill that would have tried to tweak some of those things. We could have had a bill that would have outlined each and every one of the UNDRIP protocols and said, “This is how we are aligning with it.” We do not have that bill.

[Marilène Gill, Bloc, Manicouagan, QC]

Mr. Speaker, I am pleased to have the opportunity to speak again on Bill C-15, which seeks to implement the United Nations Declaration on the Rights of Indigenous Peoples.

At this point, we are cautiously confident that it will finally pass. I say “finally” because we have been waiting for this bill for a very long time. We hope it will pass quickly, although it is still not a done deal.

The United Nations Declaration on the Rights of Indigenous Peoples was adopted on September 13, 2007. It is now May 2021, almost 15 years later, and it still has not been enshrined in Canadian law. It has been 15 years. Fifteen years is a long time. Fifteen years is the length of four Parliaments. Fifteen years is also slightly less than the difference in life expectancy between Inuit people and the rest of the Canadian population. Among men, the gap was 15 years in 2017. Fifteen years is half a generation, one-sixth of a century. That is a long time within a human lifetime.

Time passes, the world changes, but not for indigenous rights. Nothing moves, nothing changes, because Canada is the land of stalling. It is time for things to change. Despite a few flaws, we believe, as does the Assembly of First Nations, that we must move forward and pass Bill C-15 as quickly as possible, even if that means amending it later.

Today I would like to first talk about the history of our party as it relates to the Declaration and then dispel some persistent myths that are often associated with this bill.

Today I would like to reiterate that the Bloc Québécois is in favour of this bill even though the amendments we wanted to make to clarify the scope of the bill were not incorporated. We have long been convinced that implementing the UNDRIP is essential for reconciliation with indigenous peoples, and we still believe that.

The Bloc was there well before the declaration was signed. When the working group on the draft declaration on the rights of indigenous peoples met in Geneva in September 2004, the Bloc was there to advocate for their right to self-determination. The Bloc was there again in 2006 during the final sprint to adoption, when we had to redouble our efforts alongside indigenous peoples and the international community. The Bloc was there in 2007, condemning Canada for voting against the declaration at the United Nations general assembly. The Bloc was there in the years that followed to put pressure on Harper's Conservative government to sign the declaration.

The Bloc was there, the Bloc is there, and the Bloc will always be there to promote the declaration. Parliament's ratification will not only recognize the inherent rights, emphasis on “inherent”, of indigenous peoples, but also clarify them for everyone because, let me remind the House, indigenous peoples' rights are not a privilege. Indigenous rights are legitimate and, as I said, inherent.

The Bloc Québécois believes that implementing the UN declaration will not only improve social and economic conditions for indigenous communities, but also guarantee greater predictability for companies operating in the primary sector, while ensuring sustainable and responsible resource development.

In that sense, if only in that sense, it will be a win for everyone, including the economy and first nations.

I stated earlier that time is standing absolutely still for indigenous rights. I am therefore appealing to my colleagues from the other parties and those in the upper chamber. It is now up to them to get the clock going again.

I have to admit that I have never understood the Conservative Party's visceral opposition to the declaration. Last August, in an interview with Perry Bellegarde, the Leader of the Opposition justified his objections to the declaration by saying that, in his view, case law already creates a duty to consult, so there is no value added in the declaration. If it changes nothing, why be afraid of adopting it?

At the same time, the Conservatives are trying to scare us. We saw this during the debates and in the last few minutes. They say that adopting the declaration will block projects because it creates new duties to consult.

They cannot, on the one hand, say that it will not change anything and, on the other, fear that it might change something. The Leader of the Opposition should clarify his thoughts. Is he against the change because it will change something, or is he against it because it will not change anything? He will have to explain this to us because his argument is self-contradictory and sounds to me more like an excuse.

Now is the time to dispel myths like this one. I cannot remain silent about the notion of free, prior and informed consent, or FPIC, which is much more controversial than it should be. It has been at the centre of these debates, and it haunts the nightmares of my colleagues in the official opposition.

Opponents to the declaration have said over and over that free, prior and informed consent is tantamount to a veto. Nothing could be further from the truth. This time, the legislator's intention is evident, as it was in Bill C-262 introduced by my predecessor Roméo Saganash, to whom we owe a lot in this fight and whom I salute with respect and friendship. The legislator in no way sees FPIC as a veto. The Minister of Justice has said so many times. The courts cannot ignore that fact.

The declaration is absolutely clear on this issue. It states, and I quote:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent....

That is a requirement to consult in good faith. There is no mention at all of a veto in the declaration. It cannot be repeated often enough, or perhaps it bears repeating until it is understood, that this argument falls in on itself.

For me, the legislator's intent also seems very clear with regard to the scope of the bill. It applies only to areas under this Parliament's jurisdiction. Even though that is something that stands to reason and that just seems to make sense, the sponsor of the bill still went to the effort of reiterating that Bill C-15 will not impose any obligations on any other levels of government. That could not be more clear. In fact, it is crystal clear. We need to keep in mind that, if the members of the Bloc Québécois support this bill, as I am sure the government members do, it is because they understand and believe that the incorporation of the declaration into our laws should be done in partnership with the provinces and with complete respect for their areas of jurisdiction.

I must insist on this point.

In an article in the most recent issue of Recherches amérindiennes au Québec, lawyer Camille Fréchette wrote, “In light of the sharing of jurisdictions within the Canadian federal government system, the implementation of the right to [free, prior and informed consent] directly concerns the provinces, which have exclusive jurisdiction over public lands and natural resource development”.

We believe that the different levels of government must work together if the act is to be properly implemented. The provinces will have to be consulted and participate in the implementation process to ensure consistency. In our humble opinion, this bill will only help with reconciliation, provided that everyone acts in good faith and strives to maintain a dialogue.

On that note, I want to make a little aside to clarify something, because we must be thorough and there is a lot of disinformation about Bill C-15. Some people have tried to claim that the Bloc Québécois was jeopardizing Quebec's sovereignty. That is an absurd idea, but I can refute that claim with the example of territory.

The Constitution Act, 1867, makes it clear that the provinces own and are the guardians of their territory. To paraphrase constitutional expert André Binette, if that were not the case, then Hydro-Québec would not exist. Quebec's inalienable sovereignty over its territory just reinforces the need for a collaborative approach to ensure that the declaration is implemented consistently and seamlessly.

In 1985, led by René Lévesque's government, the Quebec National Assembly recognized 10 and later 11 indigenous nations on Quebec territory. In 2006, the House of Commons recognized Quebec as a nation. The Bloc Québécois has said and will say again that nation-to-nation dialogue is the only way to achieve peace and harmony, among other things.

That said, at this point, I think we have debated the implementation of the declaration long enough and should move on to the next step. Let me point out that indigenous nations have been waiting almost 15 years — 163 months or 4,990 days, to be exact — for us as legislators to take decisive action. Indigenous peoples have waited long enough. I would venture to say that they have waited too long. Their eyes are fixed on us, and the clock is ticking. It is up to us to take action now, because their inherent rights are at stake.

Tshi nashkumitin. Thank you.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

Madam Speaker, in British Columbia, where I live, the B.C. government has passed the B.C. Declaration on the Rights of Indigenous Peoples Act, which is based on this declaration. In Quebec, the National Assembly had a unanimous motion to recognize its principles.

Does the member think that it is time for every province, including Quebec, to bring in legislation to enshrine the United Nations Declaration on the Rights of Indigenous Peoples in provincial law, in addition to the federal law?

[Marilène Gill, Bloc, Manicouagan, QC]

Madam Speaker, I would like to thank my colleague for his question.

I mentioned that first nations have been waiting too long for their rights to be enshrined in federal legislation.

As a member of the House of Commons, I will leave it up to Quebec's National Assembly to decide. Quebec has always led the way on this, as evidenced by treaties signed with the Cree and Naskapi nations. The relationship is one of such deep respect that it is exemplary.

I am certainly in favour of Bill C-15, so of course I want these inherent rights to be enshrined in federal legislation, but I will leave it up to the National Assembly of Quebec to work out its own legislation. After all, everyone knows the Bloc Québécois does not appreciate anyone interfering in anyone else's jurisdiction.