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

[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?

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

Mr. Speaker, what the member said is very important to recognize. He said my examples brought forward in the House today are individuals and organizations who do not feel comfortable with this legislation going forward because they do not feel it has had the due diligence done to explain in every way possible the accountabilities, and that I am selectively choosing those individuals and organizations.

Truly, today in the House everyone has been presenting individuals who support their perspectives. Unfortunately, what that shows is exactly what I am saying. There is not consensus. There is not consensus within the federal government, within provincial governments or within the perspectives of various indigenous groups, including those who are involved in oil and gas opportunities in Canada. They have seen their opportunities shut down because of that inconsistency.

My concern is that it is clear that the due diligence has not been done. Any consultation has been selective, as the member is indicating in this case, and more needs to be done.

[Rachel Blaney, NDP, North Island—Powell River, BC]

Mr. Speaker, I want to clarify that “free” means without any coercion, “prior” means before the decision is made, and “informed” is when one has all the information. Every other governance system in Canada is allowed that. They are given free, prior and informed consent to make decisions.

The only level of government in Canada that is not given that, and it has been proven again and again in the court system, is indigenous governance. This bill is so important because it starts that process.

Could the member talk about how many indigenous communities want to be stakeholders and how this bill will actually get them there?

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

Mr. Speaker, the stakeholders who were involved in moving forward and purchasing the TMX did not get that opportunity. There are all kinds of examples of situations, such as with the Wet'suwet'en, where there is not enough clarity, and that clarity has not been provided according to various indigenous groups across the nation.

If we want to move ahead as quickly and efficiently as possible to make sure we have shareholders, not stakeholders, side by side with us we need to do what they are calling on us to do, which is to make this consent absolutely clear, and it is not.

[The Deputy Speaker, Bruce Stanton]

It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Edmonton—Wetaskiwin, Natural Resources; the hon. member for Mégantic—L'Érable, Finance; and the hon. member for North Island—Powell River, Fisheries and Oceans.

Before we get to resuming debate, I want to give a quick shout-out to my father-in-law, who is tuned in. Ian, stay well, and we hope to see you soon.

The hon. member for Peace River—Westlock.

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

Mr. Speaker, hello to your father-in-law as well from northern Alberta: Peace River—Westlock, or as I like to call it, the promised land. We have 7,500 dairy animals and we are the honey capital of Canada, so we are literally flowing with milk and honey.

Peace River—Westlock was settled on a promise called Treaty No. 8. This involved 14 first nations, three Métis settlements and over 100 communities. I overlap with about 500 other elected representatives of band councils, town councils, school trustees and others from a big swath of northern Alberta. Every day, I have the honour and privilege of representing them here in Ottawa.

Bill C-15, the implementation of the United Nations Declaration on the Rights of Indigenous Peoples, has been a widely debated piece of legislation over the last number of years. It is my honour to bring my voice to that today, representing the people of northern Alberta.

One of the things that I hope I bring as a member of Parliament is that I typically mean what I say and say what I mean. I wish that were the case with the Liberals on this particular piece of legislation. I find it interesting that even though I will be voting against this particular piece of legislation and the NDP will be voting for it, we actually agree on the substance of it: that it could make a significant change to the way the governance of this country happens. The NDP continually say that it would be a significant change and we say that it would be a significant change. It is always interesting that the Liberals continue to say they are going to bring this in, but there will be fairly minimal impact on the way we do business or the way that governance happens in this country. It is fascinating.

Section 4(a) in this bill declares that the United Nations Declaration on the Rights of Indigenous Peoples will have application in Canadian law. That is probably the crux of the bill for me, the tripping-over point that I have. No other declaration from the UN necessarily has application in Canadian law. We have not legislated that for any declaration other than UNDRIP.

Mr. Speaker, you may be familiar with the work I do to combat human trafficking in this country. Human trafficking is a scourge of this country. It is a growing crime that is happening, often within 10 blocks of where we live. One of the tools that I use in combatting human trafficking is a Palermo protocol. The Palermo protocols are part of a UN document and declaration that outlines how to identify a victim of human trafficking. The challenge with that is it is not a legislative tool. It is not a piece of law, it is a declaration. It gives principles under which countries should operate. I advocate all the time for us to bring Canada into alignment with that Palermo protocol. We have made several attempts to do that over the last 30 years: essentially, recognizing human trafficking and bringing human trafficking offences into the Criminal Code, and dealing with how to identify somebody who is being trafficked. All of those things come in, and we get a framework and idea of how to combat it from that Palermo protocol.

Another UN instrument that I use regularly is the UN Convention on the Rights of the Child. That is, again, something that helps to identify whether the rights of a child are being upheld or being violated by holding a given situation up against the UN Convention on the Rights of the Child. When there is a default or issue and we are not able to hold a particular case up against the rights of the child or Palermo protocol to ask why a human trafficking victim is not able to get justice, we can look at the Palermo protocol and see that it indicates, in this instance, that in Canada one of the areas of the Criminal Code is that there is a requirement for the element of fear.

If a person is living in fear, that is one of the elements for them to be identified as a victim of human trafficking, yet the Palermo protocol does not have that requirement at all. The Palermo protocol tries to set it up so that, given the criteria laid out, an outside observer can see whether somebody is being trafficked or not. The individual being trafficked does not have to verify that they are being trafficked.

It is similar with UNDRIP. In a given situation, we would stack it up against UNDRIP and ask: Are we meeting the ideals of UNDRIP, or are we not meeting the ideals of UNDRIP? Does Canadian law have a shortfall? Are we not living up to the areas of UNDRIP?

“Free, prior and informed consent” is one of those very definite areas where we have to ensure that we live up to that. The challenge that we have with it is that if “free, prior and informed consent” means the same thing as “duty to consult”, then on all of the court cases that have gone into developing that whole concept of “duty to consult”, would introducing a new term of “free, prior and informed consent” come alongside? If it comes alongside, if “duty to consult” falls right inside “free, prior and informed consent”, which I think it does, would our jurisprudence continue, would our jurisprudence stand, and in introducing the new topic into it, would that just come along and align?

I think that would be great. However, if it comes in and we are now going to have to start re-litigating all of the court cases of the past because we have introduced a new concept into the jurisprudence, I do not think that is going to be helpful, not at all. Now we are going to be confusing the issues.

I have been part of putting together several private members' bills. It is a rewarding exercise. It is something that is a luxury that only members of Parliament have. I am very much appreciative of the efforts that go into developing a private member's bill.

One of the issues that always comes up, every time I have worked on a private member's bill, is the introduction of new terms. Every time I bring an idea to the legislative drafters, I ask, “Why did you use that term, and not the term that I used?” or “Why do you want to talk about this, when I wanted to talk about it like that?” They always say that this term has been clearly defined by the courts. Therefore, if we use that term, we already know what it means, it has a whole list of jurisprudence.

For example, that term of “commercial use” is understood by the courts. There is a lot of jurisprudence behind that. Therefore, we want to use that term when we are talking about supply chain reporting, for example, or the use of images, or whatever it happens to be. We understand that term. The courts have ruled on that term.

When a new term is introduced into the mix, it opens up to a whole new discussion and a whole new debate, and the opportunity for the courts to have to make a judgment on what those rules have to say. That is where the concern is.

I have been sitting at committee listening to testimony on this, as committee work is always a rewarding experience, listening to Canadians bring their perspectives to Ottawa. In one case, we heard from a member of the public who outlined UNDRIP as the indigenous bill of rights. I do not think we are introducing the indigenous bill of rights when we are adopting UNDRIP. Maybe we are, but I do not think that we are doing that. So to then say that we are doing that, I do not think it is helpful to indigenous people, if they think that this is going to be a bill of rights. I am not sure. Maybe the Liberals could clarify that for me, but I do not think that is the case.

I am not 100% sure what the terms, with application in Canadian law, actually mean. Does it mean, as most of the witnesses who show up to committee say, that it would be used in much the same way as the Palermo protocol would be or the United Nations Declaration of the Rights of the Child.

If that is the case and we can slip free, prior and informed consent in right alongside the court-defined term of duty to consult, that would be great, but I have not seen that from the Liberals. I am hoping that we can hear from the Liberals that they mean what they say and they say what they mean.

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

Mr. Speaker, I have a shout-out to your father-in-law, Ian, as well. He should be very proud of all the great work that you have done over the years. I want to thank my friend opposite because I have been able to work with him for the last five years at committee.

One of the things we have seen over the last five years, especially travelling with the former MP Romeo Saganash, is the enormous amount of work that was put in to this legislation in Bill C-262 and then subsequently in Bill C-15.

Regrettably, what we have seen from my friend's party is blockage throughout its term in government up to 2015 and then beyond that we have seen absolutely no effort from the Conservative Party to move forward, whether in legislation or in terms of assessing it in Canadian law.

Could the member give us a sense of what his party intends to do in order to implement UNDRIP in Canada if the bill does not go through?

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

Mr. Speaker, Conservatives moved forward on matrimonial property rights on reserve. Conservatives have worked on ensuring that indigenous children remain with their families. Conservatives have worked on a whole host of things to bring prosperity to first nations communities.

We have worked on a number of things and to use UNDRIP as a tool, much the same way that we used the Palermo protocols or the UN Declaration on the Rights of the Child, is admirable and is something that we need to do. We want full participation of the first nations communities and first nations individuals in our economy so that the wealth that this country can create is shared by all.

[Andréanne Larouche, Bloc, Shefford, QC]

Mr. Speaker, I thank my colleague from Peace River—Westlock. I have the opportunity to work alongside him on the important issue of modern slavery and human trafficking. We are very passionate about this.

The Standing Committee on the Status of Women is calling for the implementation of the recommendations of the National Inquiry into Missing and Murdered Indigenous Women and Girls. Adopting the United Nations Declaration on the Rights of Indigenous Peoples act was one of the inquiry's recommendations. Indigenous women are particularly vulnerable to human trafficking and modern slavery, and continue to be at a tremendous disadvantage.

Canada's adoption and implementation of the UNDRIP act will help indigenous communities and women to achieve greater self-determination and equality, and help eliminate the discrimination they endure. I think this is really important and I would like to hear from my colleague, who is so passionate about this issue.

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

Mr. Speaker, human trafficking is an outrageous crime that happens right here in Canada. It is a growing problem. We know that 97% of victims of human trafficking are young women and we know that 50% of the victims that are rescued are first nations or indigenous. It is a large problem.

In order to bring Canada in alignment with UNDRIP, we need to change our laws, get our laws aligning with what the aspirations of UNDRIP are. Just declaring them to be the law has weird implications. Many of the declaration's items are not necessarily laws. They are aspirations about how we ensure that first nations communities and first nations individuals have access to the same justice as anyone else. How do we ensure that the outcomes of the justice system are the same, regardless what colour a Canadian is?

We need to ensure that participation in the economy and the rights to the fruits of this beautiful and bountiful country are shared by all.