Madam Speaker, it is an honour to speak to Bill C-15, an act respecting the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP.
The purpose of this legislation is to align Canadian laws with UNDRIP. The road to reconciliation has been a long and difficult one, with many ups and downs. Underlying it all is an understandable level of distrust on the part of indigenous peoples. Seen in that context, it could be said that at best, this is a well-intentioned piece of legislation, but even if that were so, it does not make it a good piece of legislation.
This legislation will likely move the process of reconciliation backward, rather than forward, and have grave impacts upon first nations communities to develop and prosper and achieve true self-determination. This legislation would undermine reconciliation, and nowhere is that clearer than in the complete failure on the part of the government in this bill to define what constitutes “free, prior and informed consent”.
What is free, prior and informed consent? If we were to look at the remarks of the Minister of Justice, we would be led to believe that it really means not much of anything, that the status quo ante would not be upended. In that regard, when the minister spoke in the House on this bill and the question of free, prior and informed consent, he said, “Free, prior and informed consent does not constitute veto power over the government's decision-making process.” The minister went on to say it “will not change Canada's existing duty to consult with indigenous peoples”. Clearly, that cannot be so.
Free, prior and informed consent is not the same as the duty to consult and accommodate, which is embedded in section 35 of our Constitution. There is a wide body of jurisprudence on that doctrine that makes clear that the right to be consulted and the right to be accommodated do not constitute a right of an absolute veto. When one looks at the words “free, prior and informed consent” on their face, they would seem to mean precisely the opposite of what the minister purports, namely that there would be a veto by someone.
Consistent with that, many persons who are authoritative on this matter have said as much. Let us take Senator Murray Sinclair, for example. Senator Sinclair championed Bill C-262 in the Senate in the last Parliament, which was the predecessor to this piece of legislation. Senator Sinclair is an esteemed retired justice of the Manitoba Court of Queen's Bench.
On the question of what constitutes free, prior and informed consent, Senator Sinclair said this: “Free, prior and informed consent is a very simple concept.... And that is, before you affect my land, you need to talk to me, and you need to have my permission.” If “you need to have my permission” is not a veto, I do not know what is.
Assembly of First Nations chief Perry Bellegarde said that free, prior and informed consent, “very simply, is the right to say yes, and the right to say no”. He said it is “the right to say no”, full stop. If that does not constitute a veto, then I say I do not know what does.
It did not have to be this way. The one thing the government could have done was incorporate language expressly into the bill that made it clear that free, prior and informed consent does not constitute a veto. The Liberals could have provided a clearer definition of its meaning and its effect, thereby removing the considerable questions that currently exist about the implications of its meaning and effect, and what that will do to the development of major resource and other projects if this bill is passed.
One thing that is certain is that this lack of a definition would create considerable uncertainty and a torrent of new litigation around major development projects. It would undermine regulatory certainty, undermine investor confidence, and undermine the ability of individual first nations communities to determine their own destinies by seeking opportunities to engage and participate in projects that could help their people develop and prosper.
This is hardly a hypothetical. One need only look at Bill 41, passed by the B.C. NDP government in December 2019. That bill is quite similar to Bill C-15. It does not expressly enshrine UNDRIP into law in the Province of British Columbia, but it uses aspirational language about aligning B.C.'s laws with UNDRIP, similar to Bill C-15.
Within two months of the passage of Bill 41, three major projects were challenged by the United Nations Committee on the Elimination of Racial Discrimination: the Kitimat LNG project, the Site C dam and Coastal GasLink. The UN committee said that UNDRIP did apply, and that there had not been free, prior and informed consent. Many indigenous communities and leaders also took that position. That was despite the fact that, in the case of Coastal GasLink, 20 indigenous communities had supported the project but one faction of unelected hereditary chiefs opposed it. It underscores the uncertainty that would result from the passage of this bill, and it is why I cannot support this bill.