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.

Second reading

[Yvonne Jones, Liberal, Labrador, NL]

Madam Speaker, this legislation is really there to guide a collaborative path forward. We cannot forget that. It is there to build a stronger relationship and provide greater predictability, as well as more certainty, over time. It encourages partnerships in the resources sector and includes industry and indigenous people working together.

It does not create any new obligations. It does not create any new obstacles. It does create a path toward respect and respecting the rights of indigenous people in this country.

To be honest, many corporations and most industry sectors are more than willing to walk that path because they understand it. They get it, and they know that it is not compromising their investments. In fact, it enhances what they are doing and ensures a fair and shared distribution of benefits to all people who are affected and involved.

The House resumed consideration of the motion that Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, be read the second time and referred to a committee.

United Nations Declaration on the Rights of Indigenous Peoples Act

[The Speaker, Anthony Rota]

I wish to inform the House that because of the deferred recorded division and the ministerial statements, Government Orders will be extended by another 40 minutes, for a total of 70 minutes.

The hon. Parliamentary Secretary to the Minister of Northern Affairs has one minute remaining in her debate, and then we will go to questions.

The hon. member's camera is off. We will move on.

Resuming debate, the hon. member for Beaches—East York.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Mr. Speaker, on behalf of Beaches—East York, I speak today in support of Bill C-15. I want to start by acknowledging the work of former NDP member Romeo Saganash. It really highlights how the importance of this issue cuts across party lines, and the significance of working across party lines to get important things done.

I have had many constituents reach out to me in support of implementing the United Nations Declaration on the Rights of Indigenous Peoples. Most, of course, email or write letters. Some call. Before the election in the last Parliament, when Bill C-262, Romeo Saganash's bill, was before us, I had a constituent, Murray Lumley, who came and met with me in my office and called on me to support that bill, which I did, and encouraged the government of the day to support it. Murray is a thoughtful, caring constituent. He did not vote for me; he worked against me, if I am being honest, in the last election, and I do not expect he will vote for me whenever the next election might be. However, I do want to highlight his efforts, all the same, just as I have highlighted Romeo's efforts. It is important that we emphasize just how this cuts across party lines and how all of us, regardless of political stripe, need to support this really important legislation.

When we work across party lines, we build trust. Another way we build trust in politics is by keeping our promises. I just want to highlight the platform that we ran on in the last election, which stated:

Canada’s Truth and Reconciliation Commission said that the UN Declaration on the Rights of Indigenous Peoples charts a path “for reconciliation to flourish in 21st century Canada.”...

We will move forward with introducing co-developed legislation to implement [UNDRIP] as government legislation by the end of 2020. In this work, we will ensure that this legislation fully respects the intent of the Declaration, and establishes Bill C-262 as the floor, rather than the ceiling, when it comes to drafting this new legislation.

That promise has been kept through Bill C-15, which was introduced in Parliament in December of last year.

In substance, Bill C-15 has a lengthy preamble, including that:

[UNDRIP] provides a framework for reconciliation, healing and peace, as well as harmonious and cooperative relations based on the principles of justice, democracy, respect for human rights, non-discrimination and good faith.... [They] constitute the minimum standards for the survival, dignity and well-being of Indigenous peoples of the world....

It recognizes “historic injustices” and says that “the implementation of the Declaration must include concrete measures to address injustices, combat prejudice and eliminate all forms of violence and discrimination, including systemic discrimination, against Indigenous peoples.”

In substance, clause 5 states:

The Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.

Saganash rightly noted before committee that “the Minister of Justice [already] 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”, and he noted that Bill C-15 provides for an equivalent for indigenous rights and treaty rights in this country.

Clause 6 is the most important section in this legislation:

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

This includes measures to “address injustices” and discrimination and to “promote mutual respect”; “measures related to monitoring, oversight, recourse or remedy” and accountability; and “measures related to monitoring the implementation of the plan” and annual reporting mechanisms to Parliament.

Bill C-15 does treat Bill C-262 as a floor, which is incredibly important. It goes beyond, in its preamble, and recognizes the inherent right to self-determination, including a right to self-government.

In the words of the justice minister:

Bill C-15 would create a legislated, durable framework requiring government to work collaboratively with indigenous peoples to make steady progress in implementing the declaration across all areas of federal responsibility.

Is it supported by indigenous communities? Is it supported by experts? Is it supported by the above-noted Mr. Saganash? The answer is yes, an overwhelming yes. There is a letter in support of Bill C-15, with over 200 signatures from first nations, from indigenous communities across the country, organizations, experts and activists, including Saganash, Irwin Cotler, the current NDP member for Winnipeg Centre, and many others. I know that one of the signatories is also a constituent, Kerry Wilkins, who is an expert at the University of Toronto.

They write in this letter:

Parliament has an historic opportunity to advance reconciliation.

[UNDRIP] is a consensus global human rights instrument, elaborating minimum standards for the “survival, dignity and well-being of Indigenous peoples.” Implementation of these standards is vital to improving the lives of Indigenous peoples in Canada and around the world, and to upholding Canada's solemn and urgent human rights commitments.

They go on to note that the measures in Bill C-15 are “important, practical and achievable measures that deserve the support of all Canadians.”

Two of those signatories, Alex Neve, formerly of Amnesty International, and Brenda Gunn, wrote recently, and separately:

By any measure, implementing this global declaration domestically will significantly advance reconciliation and strengthen respect for the rights of Indigenous Peoples across the country. Not automatically. And not without much hard work ahead, such as the considerable effort—in full collaboration with First Nations, Inuit and Métis Peoples—that must be invested in developing the action plan for implementation that will be required.

They go on to note that it is important as a matter of global leadership and that it “stands to advance Canada's overall commitment to international human rights.”

Speaking recently to a parliamentary committee studying Bill C-15, Romeo Saganash stated:

I fully support Bill C-15 being tabled by the federal government in the House.... 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.

He goes on to note that there are some amendments he would like to see, but he supports Bill C-15 and acknowledges that it meets his previous bill's commitment in Bill C-262.

Former chair of the TRC and former senator Murray Sinclair said, “Indigenous people now will be able to negotiate with a stronger hand than they ever have in the past”.

The Assembly of First Nations said, “The AFN is urging all Parliamentarians to support adoption of a strong implementation framework before the close of this session of Parliament.”

The ITK calls for the strengthening of Bill C-15, but goes on to say that it strongly encourages all members of Parliament to support Bill C-15 in order to help advance the urgent work of implementing UNDRIP.

The Métis National Council stated:

Canada now has the opportunity to assert its place as a world leader in the recognition of the human rights of Indigenous Peoples through this Bill. The Métis National Council fully supports this effort, and we urge members of all political parties to pass this legislation without delay.

Sheryl Lightfoot, the Canada research chair in global indigenous rights and politics at UBC, stated:

I am strongly in favour of the implementation model that Romeo Saganash created when he first brought...Bill C-262 before 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...the creation of an action plan, and it requires public reporting and accountabilities.

...Bill C-15 is advancing the global conversation and setting a very positive example....

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.

I previously noted my constituent Kerry Wilkins, who states, “Meaningful incorporation of UNDRIP into Canadian law would improve materially the circumstances, and enhance the autonomy, of Indigenous peoples dwelling here.” He goes on to provide a couple of examples. I recognize I am running out of time, so I will not get into them, unless perhaps I get asked questions.

Of course, I expect the government will look for ways of improving the bill at committee. I hope to see further testimony at committee that addresses whether a three-year waiting period for the action plan is appropriate and, if it is, whether interim measures might be useful. I am also interested to understand from testimony why the bill does not include a section on power-sharing agreements in the same way B.C.'s UNDRIP implementation legislation does.

Finally, it is really important to emphasize that so much depends upon implementation, so there are big questions in that regard. This bill is important, but it is important in its potential. Let us pass it at second reading, send it to committee, improve it at committee where possible, and let us get back to the hard work of implementing this important international framework here at home.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Mr. Speaker, the member referenced quite a few quotes, so I would also like to reference a quote from Dale Swampy of the National Coalition of Chiefs, who writes in a special to the Financial Post:

While the affirmation of Indigenous rights is always welcome, the legislation as currently drafted is likely to have negative impacts on the many Indigenous communities that rely on resource development as a source of jobs, business contracts and own-source revenues.

I have spoken to a number of indigenous leaders and individuals across my constituency and across the country who have shared concern about some of the ambiguity and possible extra layers that would reduce economic opportunities for Canada's indigenous peoples. I would like the member to comment on that.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Mr. Speaker, there are a couple of different things.

One is that it is curious to me that we would get out ahead of ourselves to determine exactly how this would be implemented, because this is to be implemented in a very codeveloped way in collaboration and consultation with indigenous peoples across the country.

The second is that its incredibly important to note, because the Conservatives and that member have asked a number questions around certainty, that our Canadian law already says, with respect to the duty to consult, that it varies with the circumstances, from a minimum duty to discuss important decisions where the breach is less serious or relatively minor, through the significantly deeper than mere consultation that is require in most cases, to full consent of the aboriginal nation on very serious issues. These words apply as much to unresolved claims as to intrusions on settled claims.

Those are the words of our current Supreme Court. This notion of certainty has to be put to bed. We will get increased certainty through collaboration and consultation with indigenous people once and for all.

[Kristina Michaud, Bloc, Avignon—La Mitis—Matane—Matapédia, QC]

Mr. Speaker, I thank my colleague for his speech.

I applaud the tabling of the bill, but unfortunately it is a bit late coming. Our NDP colleagues have been introducing bills for the implementation of the United Nations declaration since 2007. The Liberal government has said many times that it is in favour of reconciliation with indigenous peoples. If that is what it wanted all along, why the lengthy delay in introducing this long-awaited bill?

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Mr. Speaker, we supported Mr. Saganash's efforts in the last Parliament. I have supported every bill that has come before Parliament, so long as I have been in Parliament, in relation to the implementation of UNDRIP. Romeo Saganash's bill should have passed in the last Parliament but for the fact the Conservatives blocked it in the Senate. That is an unfortunate circumstance, but we are rectifying that in this Parliament through leadership from this government.

[Matthew Green, NDP, Hamilton Centre, ON]

Mr. Speaker, I thank the hon. member for the earnestness in which he has supported the previous work of the very great and learned Mr. Romeo Saganash, a friend and mentor of mine, who provided the framework here. However, the hon. member for the Bloc raises some important questions.

I have a question of my own. I heard the member speak about the ideas of consultation, collaboration and power sharing. There are concerns that the legal frameworks that are already in place have led to scenarios like what we are seeing in Wet'suwet'en and in 1492 Land Back near my home, the Haudenosaunee Confederacy territory. We are seeing these problems exist as well in the Mi'kmaq territory out east.

Does the hon. member have confidence in the government's commitment to actually having free, prior and informed consent for the collective rights-holders of these treaties?

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Mr. Speaker, this comes up too often and I think this is an inference of a previous question I received from Conservatives in relation to uncertainty. Of course, I am confident that free, prior and informed consent, as referenced a number of times throughout UNDRIP, will be a key part of the collaboration and communications with indigenous peoples in setting down the action plan under Bill C-15.

What that will entail in the end, as Kerry Wilkins, the expert in my community, and as Murray Sinclair have said, is that it ought to enhance our current framework unquestionably. Let us also remember that, as Romeo Saganash has himself said and as the UN has said in its expert committee's look at free, prior and informed consent, when we are grounded in human rights, we are also looking at not absolute veto considerations, but we are looking at principles of proportionality as they relate to the interest at issue. Therefore, we will see an enhancement of our existing law through the implementation of UNDRIP, Bill C-15 and the action plan. We will also see it building upon this notion of human rights and considerations around proportionality.

[Cathay Wagantall, Conservative, Yorkton—Melville, SK]

Mr. Speaker, I will be sharing my time with the member for Peace River—Westlock.

I am really pleased to be working and building relationships with the people of the Cote, Keeseekoose, The Key, Fishing Lake and Yellow Quill First Nations and the Métis Nation Saskatchewan in the riding of Yorkton—Melville on Treaty No. 4 and Treaty No. 5 lands.

I am also very pleased to speak today on Bill C-15, an act respecting the United Nations Declaration on the Rights of Indigenous Peoples.

It goes without saying that the consideration of this legislation today is a significant moment for Canada, not only because members on all sides of the House, and therefore all Canadians, want to achieve meaningful reconciliation with Canada’s indigenous people but because the Liberal government has made a critical misstep toward this goal through the introduction of the bill in its current form. It is my fear that the impact of the bill will result in the opposite of its desired effect.

The bill aims to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP. Subclause 4(a), for instance, states that “The purpose of this Act is to (a) affirm the Declaration as a universal international human rights instrument with application in Canadian law”. Further, clause 5 charges the Government of Canada with working “in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.”

The House will remember calls to action 43 and 44 of the Truth and Reconciliation Commission, urging the federal government to “to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation” and “to develop a national action plan, strategies, and other concrete measures to achieve the goals of the United Nations Declaration on the Rights of Indigenous Peoples.” It was in fact the previous Conservative government that adopted UNDRIP in 2010 as an aspirational document.

Then and now, the Conservatives support the goals and aspirations of this declaration. We support treaty rights and the process of reconciliation with the indigenous people of Canada. However, we remain concerned about the Liberal government’s unwillingness to put forward legislation that clearly outlines the effect and interpretation of key terms within the declaration, such as “free, prior and informed consent”. When it comes to understanding what exactly this term means in a practical sense, the lack of consensus between the federal and provincial governments, among members of the legal community and within indigenous communities themselves is worthy of concern.

The previous Conservative government, at the time of its inception, opposed UNDRIP, because free, prior and informed consent did not align with Canadian constitutional law. That is why, a few years later, the same government adopted UNDRIP as an aspirational document, not binding law. This was a move in line with three of our Five Eyes partners: the United States, Australia, and New Zealand. It was a decision made with good reason. The wide-ranging provisions within UNDRIP, like FPIC, were found to be inconsistent with Canadian constitutional law.

Over a decade later, the Liberal government is forging ahead with infusing UNDRIP into the law of the land. However, it has failed to do its due diligence in presenting a bill that can be clearly understood by government and stakeholders. There is a lack of consultation on what purports to be a transformative piece of legislation that will have untold ramifications on our country, indigenous communities and, indeed, all Canadians.

NTC president Judith Sayers says that the consultative process for this bill lacked mutual agreement and was rushed. AFN chiefs have expressed their concern that no extensive consultations were held. The government is good at partial consultations, but the word “extensive” is mentioned here.

Late last year, six provincial premiers wrote to the Minister of Justice and the Minister of Crown-Indigenous Relations to object to the six-week window provided for input on the draft bill. They stressed the need for “appropriate engagement with provinces, territories, and Indigenous partners on the draft bill” that could “fundamentally change Confederation.” I do not believe that has taken place and any that has is not clearly outlined to the House. The premiers pleaded for time for Canada to fully and meaningfully consider and address the legitimate, significant concerns that we have already raised about the draft bill in its current form.

It is unacceptable for the government to claim that the time for consultation has been satisfied. I have heard that a great deal today. Concerns expressed at the time of the previous UNDRIP bill, Bill C-262, still exist now. How can the government claim credit for a new era of trust and reconciliation with indigenous communities with such a heavy-handed and sloppy approach to this legislation?

As I mentioned earlier, the effect of free, prior and informed consent has been a long-standing concern that has not retreated from the national discourse. It generates more questions than it provides answers.

Take, for instance, the direct input of indigenous communities. The National Coalition of Chiefs and the Indigenous Resource Network have expressed its concern about ramifications, such as who would have the authority to grant it and the impact it would have on future resource projects. If grant expectations under this model are not met, how will it undermine trust between the Crown and indigenous people for generations to come? Will it deter investment, good jobs and secure incomes from reaching our shores? Indeed, the interpretation of this may lead to consequences beyond Canada's resource development.

Professor Dwight Newman of the University of Saskatchewan's Faculty of Law, speaking before the Senate aboriginal affairs committee on a previous iteration of the bill stated, “the Court’s interpretation of FPIC is nonetheless subject to uncertainties that have enormous implications for Canada”. Professor Newman's input has merit.

Again, let us focus on how indigenous communities may be impacted. Clearly, the pursuit of reconciliation and tangible progress for indigenous communities could be stagnated by opaque language like FPIC. Even considering the current constitutional model, one that outlines a duty to consult and accommodate, tangible results can be hard to come by depending on the degree of intrusion proposed. With the implementation of this model, many serious questions are raised, including who might provide their consent in any given circumstance or who speaks for any community.

Members will recall a sensitive period for our country not too long ago when the decisions of 20 band councils concerning the Coastal GasLink pipeline came into direct conflict with opposition from Wet'suwet'en hereditary chiefs. Opposing groups within the Wet'suwet'en could not come to an agreement about who spoke on their behalf. Speaking before a parliamentary committee, Theresa Tait-Day, a founder of the Wet'suwet'en Matrilineal Coalition, said that the project had been hijacked, despite 80% of the band wanting the project to proceed.

It has been argued that the passage of Bill 41 in British Columbia, in many ways a mirror of the legislation before us, led directly to the disconnect between the elected band council, hereditary chiefs and government. Many indigenous stakeholders interpreted Bill 41 as the vehicle through which UNDRIP was adopted and therefore established a right to veto construction on the line. Indigenous communities deserve better than the ambiguity that B.C.'s Bill 41 and Bill C-15 provide.

Other questions remain, such as, how will this apply in situations where indigenous rights include title or the right to occupy lands and use resources? In situations involving unresolved or overlapping land claim disputes, whose consent is required? What form will this consent take in Canadian law? There is a real concern that the government is taking steps to enshrine UNDRIP into Canadian law without a clear picture of how concepts like FPIC will be interpreted in that law.

As justice minister in 2016, the member for Vancouver Granville said, “simplistic approaches, such as adopting the UNDRIP as being Canadian law are unworkable.” She went on to say, “it's important to appreciate why Canada cannot simply incorporate the declaration "word for word" into law.”

The Conservatives have been clear and consistent. We believe that UNDRIP is an aspirational document whose goals we support. However, to adopt it wholesale without consideration for lasting consequences is irresponsible. We need a made-in-Canada approach to achieve the type of reconciliation UNDRIP outlines. Indigenous communities do not need a further barrier to achieving the best for their communities.

Dale Swampy, president of the National Coalition of Chiefs, has spent his professional life in first nations administration as well as the oil and gas industry. In a special note to the Financial Post he wrote that he “know[s] first-hand what happens when federal bureaucracy gets in the way of responsible resource development.” It is his belief that symbolic gestures of reconciliation should not come at the expense of food on the table for indigenous people.

Reconciliation with Canada's indigenous people means recognizing and affirming their dreams and aspirations to not just be stakeholders but, as I have been told, shareholders. In this case, it is the private sector that has led the way in spending on indigenous businesses.

One example of nine is Cameco, the uranium company that procured $3.8 billion since 2004 from local suppliers in the riding of Desnethé—Missinippi—Churchill River in northern Saskatchewan, whose member of Parliament is so passionately committed to seeing reconciliation truly succeed. His words I now repeat, “Advocating for jobs, owned-source revenue streams, equity ownership and financial independence is in fact the pathway to self-determination and the solution to many of the social challenges.”

The Liberals have been failing to keep their promises, such as ending long-term boil water advisories, and failing to stand up for the future of the natural resource projects that benefit indigenous communities and that they want to be part of. As it stands, this bill has the potential to sow further seeds of division across our country. If it is the government's intention to enshrine an international—

[The Deputy Speaker, Bruce Stanton]

We will have to end it there. Our time has expired.

Questions and comments, the hon. member for Shefford.

[Andréanne Larouche, Bloc, Shefford, QC]

Mr. Speaker, I thank my colleague for her speech. She talked about the problems indigenous communities are facing and access to safe drinking water on different reserves.

Does she not believe that adopting this program could help foster reconciliation?

In Quebec, the Viens commission recommended that the declaration be adopted. The National Inquiry into Missing and Murdered Indigenous Women and Girls also recommended that the declaration serve as a tool for reconciliation and a means to reduce the inequality of women in indigenous communities.

I would like to hear what my colleague has to say about that.

[Cathay Wagantall, Conservative, Yorkton—Melville, SK]

Mr. Speaker, the point that I am making is that there has not been due diligence done. My comments are not coming from me. They are coming from the indigenous communities around us that are saying this is not clear enough. The government seems to want to take the approach that it takes on so many things: It makes big announcements, it makes big decisions, it implements them, but then all things break loose.

We need to take the best approach we possibly can to make sure that our indigenous people, our first nations and Métis have the opportunities to truly excel in the ways they choose. I appreciate the comment. They do not want to be stakeholders. They have every right to be shareholders in the economic successes of Canada and they are more than capable of doing so. They want proper due diligence done in defining this situation.

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

Mr. Speaker, UNDRIP was adopted in 2007. We are 14 years into it in Canada, and we still have not domesticated this law. My friend opposite outlined a number of comments made by people who oppose this particular piece of legislation. She has been very selective in picking those.

My question is quite direct. Are there any circumstances under which the Conservative Party would support UNDRIP in any form? The Conservatives had 10 years to implement it within Canada and they have opposed it every step of the way since being in opposition. Is there any way in which the Conservative Party will support this, or any legislation that hopes to domesticate UNDRIP?