Mr. Speaker, I rise today to speak to Bill C-15, an act respecting the United Nations Declaration on the Rights of Indigenous Peoples. This is a bill that has had seven iterations since 2008. Right from the beginning, Conservatives have seen the value in UNDRIP as an aspirational document that provides guiding principles toward reconciliation. We also recognize that many of the articles of UNDRIP are supportable. However, the impact of free, prior and informed consent and its impact on the cultural, social and economic development of indigenous peoples remains unclear. This is not coming as a surprise to the government. Conservatives have been clear from day one that this needed clarification. The fact that the government in its legislation has failed to clarify free, prior and informed consent yet again indicates it simply does not care about the implications that this bill would have for indigenous and non-indigenous communities.
Let me be clear. Conservatives support indigenous communities and their rights. We support the process of reconciliation with Canada's indigenous people, including the importance of education, economic development, and employment and training opportunities. We supported the Indigenous Languages Act and legislation relating to indigenous child welfare. We support many of UNDRIP's articles, but what we oppose is the government's lack of due diligence in putting forward legislation without reaching a common understanding of how free, prior and informed consent will be interpreted. We also do not think that enough consultation has been done with indigenous communities. This is something that has been echoed across the country, in fact. This will lead to uncertainty and could potentially undermine trust if expectations are not met, which could in turn set back reconciliation.
The government will say not to worry, and that this will be sorted out later. We have heard this many times. In fact, this is exactly what the justice minister told the Assembly of First Nations recently, but when it comes to taking action that will impact the lives of indigenous peoples, such as ending long-term boil water advisories, the Liberals have consistently failed to keep their promises. The Liberal government has a track record of saying it will sort it out later and then never delivering, so how can we trust them this time to do anything differently? That is why we have to worry with the Liberal government. We have to worry that the undefined statement of free, prior and informed consent could be interpreted as a de facto veto right, and thus have profound detrimental effects not only for a variety of industries across Canada, but for indigenous communities as well. National Chief Perry Bellegarde stated on May 12, 2016, that free, prior and informed consent “very simply is the right to say yes, and the right to say no”.
What if two or more indigenous communities want different things? The exact impacts on workers across regions and industries are unknown. The impacts on indigenous entrepreneurs are unknown. However, with the uncertainty created by the Liberals around the interpretation of free, prior and informed consent, the cost to communities, labour unions, indigenous businesses, and provincial and territorial governments could be astronomical. If existing laws and regulations could be superseded by implementing UNDRIP, the regulatory burden on industries could increase and deter business in Canada. This uncertainty hurts both prospective development and indigenous communities. There is a lack of clarity regarding how UNDRIP will work with Canadian jurisprudence and within each level of government. Everyone has a different interpretation. The only people who stand to benefit from a lack of clarity or a lack of definition are lawyers.
During a December 3, 2020, briefing for parliamentarians, representatives from the Department of Justice stated that Bill C-15 respects Canadian jurisprudence, while officials from Natural Resources Canada stated that the bill does not create requirements for industry, but for government. Which representatives were correct? We know from the Wet'suwet'en dispute that many indigenous Canadians believe the government and all industries operating in British Columbia, where a bill similar to Bill C-15 was passed, are bound by UNDRIP. In this case, hereditary chiefs maintained that they had not given their free, prior and informed consent for the pipeline. This was despite the proponent entering into agreements with all elected chiefs and councils along the approved route.
What if two or more indigenous communities want different things? Even within the same community, what if there is conflict between what the elected band council and hereditary chiefs want? Whose free, prior and informed consent trumps whose? Government officials appear to believe that the Indian Act and therefore elected chiefs would take precedence, but then why did the Minister of Crown-Indigenous Relations enter into an agreement with hereditary chiefs and ignore the elected chiefs of the Wet'suwet'en? There is not enough clarity.
There are many more examples.
Article 3 states:
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
How does that work, regarding Supreme Court decisions such as Marshall I and Marshall II, which state there are limitations on economic rights subject to definition by the responsible minister and the Badger test?
Article 19 states:
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 before adopting and implementing legislative or administrative measures that may affect them.
How does that work with the October 11, 2018, Supreme Court decision, which clearly states that the duty to consult does not extend to the legislative drafting phase?
Further, article 28.1 states:
Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
What does that mean for the City of Ottawa, for example?
Furthermore, it should be noted that the Supreme Court established in 1901 that it does not need to be bound by previous decisions, meaning it could subsequently choose to revise certain decisions once UNDRIP is affirmed as a tool for interpreting Canadian laws, including the Canadian Constitution.
Another important question is that of how land claims and modern treaties will be affected by UNDRIP. Currently, for example, article 4 of the Nunavut Land Claims Agreement lays out a division of powers within the territory. It includes a political accord granting powers, such as in other provinces and territories, to a public government and creating space and decisions that would affect the socio-cultural development of Inuit for input from the beneficiary organization. However, the lack of a clear definition of free, prior and informed consent may lead to the reopening of that land claim, as is already happening in Nunavut.
ITK president Natan Obed stated on December 3, 2020, in an interview with a news agency that “There are many things that the land claims are silent on.” Since devolution has not occurred, these discussions can still happen between Canada and Nunavut Inuit.
Is it possible that modern treaties and established land claims across the country may move to reopen negotiations to reclaim rights groups feel they may have given up in exchange for self-government?
In its December 2008 resolution, the AFN specifically states that the relationship between first nations and the Crown has been, and must continue to be, governed by international law. It added that treaties concluded with European powers are international treaties created for the purpose of co-existence rather than submission to the overall jurisdiction of colonial governments, and that the Canadian government has at no point been able to provide proof that first nations have expressly and of their own free will renounced their sovereign attributes. This statement clearly suggests an unwillingness to accept Canadian jurisprudence as the ultimate authority, calling into question how discrepancies between Supreme Court rulings and UNDRIP articles would be resolved. That is of critical importance.
Clause 5 of the bill 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.
Not some laws, but the laws of Canada: not just federal, but provincial and municipal as well. Has the government consulted with the provinces and municipalities?
On November 27, six provincial ministers of indigenous affairs sent a joint letter to the government to share their concerns with this legislation. That included Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick and Quebec. They were concerned that they were only given six weeks to review the legislation and about the impact it will have on the laws and regulations in their provinces. The letter states:
...delay is necessary both to allow for appropriate engagement with provinces, territories, and Indigenous partners on the draft of the bill, and to allow time for Canada to fully and meaningfully consider and address the legitimate...concerns that we have already raised about the draft bill in its current form.
The letter goes on to say:
A hasty adoption of ambiguous legislation that could fundamentally change Confederation without the benefit of the widespread and necessary national and provincial consultation and consensus not only risks undermining reconciliation, but will create uncertainty and litigation and risk promoting deeper and broader divisions within our country.
The list goes on.
The lack of clarity in this bill could have sweeping implications. The purpose of legislation is to make the law clear. As I said earlier, this bill fails to do that. The Liberal government has failed to do the real work necessary to make good on its promise to implement UNDRIP. Instead, it has presented a bill that is woefully incomplete because all it wants to do is check a box, but this bill is nowhere near a promise kept. It is yet another in a long line of the Liberal government's broken promises to indigenous communities.
On December 17, the National Coalition of Chiefs wrote to the Prime Minister, expressing its concern:
While the affirmation of Indigenous rights is always welcome, there are implications to this legislation, as currently drafted, that 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 do not want to see symbolic gestures of reconciliation come at the expense of food on the table for Indigenous peoples.
That is worth repeating: The legislation “is likely to have negative impacts on many Indigenous communities". How is that keeping with reconciliation?
Industry stakeholders are generally supportive. Like Conservatives, they share an understanding of the aspirational spirit of UNDRIP and the need for renewed nation-to-nation discussions on the path to reconciliation. However, they also share concerns, similar to those of Conservatives and many indigenous communities, that before Bill C-15 is passed, the government must clarify free, prior and informed consent. They are seeking clarity and want to ensure they understand the rules, but most concerning is the lack of consultation on Bill C-15 with indigenous communities.
The National Coalition of Chiefs expressed concern, stating:
...the lack of consultation is a flag for Indigenous leaders and communities across Canada. While the NCC was able to meet once with the Minister of Justice, there was an understanding that we would meet further to discuss our issues and concerns. The current comment period is far too short for us to consult with our representatives of Parliament.
Legislation of this magnitude only warranted one meeting.
On February 3, the elders of Saddle Lake Cree Nation wrote to the Prime Minister. They expressed deep concerns and indicated that they fully disapprove of Bill C-15 and the process that has been followed to date by the Government of Canada. This is because the government had not made any attempts to meet with them, or to provide adequate time and opportunity to consult.
The Liberal government has repeatedly demonstrated its inability, or perhaps just its unwillingness, to properly consult, let alone come to any agreements on the definition of “indigenous rights”. It is this uncertainty in the ability and willingness of the government to really deliver on Bill C-15 that has so many worried. Leaving interpretation to the courts over the ensuing years will lead to uncertainties that will have enormous implications for Canada.
While the Conservative Party supports the goals and aspirations of UNDRIP, we are concerned the government is going ahead with legislation, enshrining it into Canadian law, before we have developed a common understanding of what concepts such as free, prior and informed consent actually mean. There is currently a lack of consensus in the legal community. Without a common understanding, we risk creating uncertainty and misunderstanding in the future. That would mean letting indigenous Canadians and their communities down yet again.
Conservatives believe that the path to reconciliation lies in taking meaningful action to improve the lives of indigenous peoples and ensuring that they are able to fully participate in Canada's economy. We are concerned that a lack of clarity and common understanding about key concepts in the bill could have unpredictable and far-reaching effects that could undermine reconciliation in the long term.
Without a clear definition of free, prior and informed consent, there are several outstanding and troubling questions left unanswered. Whose consent must be sought when it is clear that consent has to be given? Could an unelected individual or group undermine the will of elected indigenous representatives or invalidate the decision of an indigenous-led process, an institution, or a public government?
I appreciate that the government feels that free, prior and informed consent does not mean a veto. The National Post reported the justice minister saying, “The word veto does not exist in the document”. In that same article, David Chartrand, the national spokesperson for the Métis National Council said, “We made it very clear, this is not a veto, we’re not out to kill industry”.
Why not then include a definition of free, prior and informed consent in this document? Why not spell it out for all Canadians that it does not mean a veto? If this process is about providing clarity for indigenous communities, non-indigenous communities and industry, let us start with some clarity around Bill C-15.
When it comes to taking practical actions that will impact the daily lives of indigenous peoples, such as ending long-term boil water advisories, the Liberals have, unfortunately, failed to keep their promises. I feel that Bill C-15 may be just another failed promise.