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Bill C-15 - UNDRIP - Third Reading

Honourable senators, I rise today to speak at third reading of Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples.

I would first like to quote Wendy Lynn Lerat when she stated:

UNDRIP provides hope for a more just, sustainable and decolonized future at a time in history when ecosystems are collapsing as a consequence of global over-exploitation of Creation. Some call this “development,” but in reality it’s a time of human-caused climate change unprecedented in its magnitude and reach.

Colleagues, to be clear, the underlying conflict has always been about land and resources, including the interpretation of the state regarding UNDRIP. Ms. Lerat continues by stating:

Canada began the process by implementing UNDRIP unilaterally and top-down, ensuring that Canada’s own version, with its own definition of self-determination, becomes entrenched in law through Bill C-15. . . .

Also, neo-colonialism is pervasive among those in the positions of power, authority and control within Canada’s colonial Indigenous governance system. . . . We are now being colonized/recolonized by some of our own Indigenous people. I fear the foolish actions of our own will lead to the end of ourselves as distinct peoples.

Truth before all else — that is all that we, as First Nations, have asked of the government. But there has been no truth in the treaty process and no truth in the process of consultation.

Silence — discouraging Canadians from advocating for amendments that would strengthen this bill and then vilifying those who would bring them forward. Behaviours like these are colonizing and not those of allies.

These actions are enemies of sober second thought and our parliamentary duties. What should be a powerful moment of working with government to implement human rights for treaty peoples turns out to be just another face of oppression.

I believe there is much work to be done on this bill and I am willing to sit into July to study this responsibly.

Honourable senators, the amendment I am introducing today — which I will read towards the end of my time — incorporates five different areas of improvement. I would like to explain this amendment now.

The first area is to —

The Hon. the Speaker: Excuse me, Senator McCallum.

Senator Plett?

Point of Order—Debate

Hon. Donald Neil Plett (Leader of the Opposition): Your Honour, I ask this very reluctantly, but we have Rules in this chamber, and one of them is not to allow any types of props. I would consider what Senator McCallum has there to be a prop and I would ask you to rule on it.

Hon. Pierre J. Dalphond: Your Honour, I was not expecting such a point of order. I must say that our colleague has an eagle feather in her hands. This is not a prop, nor an advertisement. It is not a sign of anything except of her own culture and identity. We have colleagues who wear a turban on their head or who dress in a certain way according to their culture and tradition. Your Honour, I do not think it is a proper point of order.

The Hon. the Speaker: Does any other senator wish to enter the debate?

Hon. Mary Jane McCallum: I would like to comment. I had reached out to elders and knowledge keepers with regard to this deep subject that goes to the core of our being. I have with me an eagle fan. It is not a prop. This is a ceremonial object that was given to me as an honour. When I spoke to them last night they said, when you speak it means so much and you’re calling on ancestors, on the people who want us to hear this important topic. They said, you take it with you. That is why I have it with me today because this is who I am, this is what was taken away from me and I will not give it up again.

Hon. Pat Duncan: I would like to rise in support of the comments that have been made by my colleagues Senator McCallum and Senator Dalphond. I also believe, Your Honour, that there have been provincial-territorial rulings in this regard where an individual has been holding an eagle feather. My understanding is that, culturally, to hold the eagle feather is to speak the truth and what we are called upon to do each day in this chamber and in other legislatures. I believe there has been rulings accepting this as an element of the individual who is speaking. Thank you.

The Hon. the Speaker: Honourable senators, it’s now six o’clock and pursuant to rule 3-3(1) and the order adopted on April 27, 2020, I’m obliged to leave the chair until seven o’clock unless there is leave that the sitting continue.

If you wish the sitting to be suspended, please say suspend.

Some Hon. Senators: Suspend.

The Hon. the Speaker: I will continue debate on the point of order after we reconvene. The sitting is suspended until 7 p.m.

(The sitting of the Senate was suspended.)

(The sitting of the Senate was resumed.)

Point of Order Withdrawn

Hon. Donald Neil Plett (Leader of the Opposition): Your Honour, I raised a point of order and the fact of the matter is that I do believe it is a point of order. But, having said that, I also believe that, in light of the present — I don’t know whether I want to call them circumstances — but because of things that have happened as of late, it was clearly deemed as insensitive. It was not intended to be insensitive. I tried to choose my words, but it was deemed as being insensitive. For that, I ask Senator McCallum’s indulgence because it wasn’t intended to be that.

I believe that we have very distinct rules in the chamber. Unfortunately, the word that we have to use is “prop.” Clearly, what Senator McCallum held was not in her opinion a prop, and probably not in mine, but it was what the chamber would in many times determine as a prop.

Nevertheless, I ask Senator McCallum for indulgence. I apologize if in any way I offended her because that was not my intent.

I am going to withdraw my point of order, first of all, Your Honour. With that, I ask you to take that under advisement over the next period of time and that we create some rules around what is appropriate and what isn’t. I do believe we have rules around that. I do believe that what I asked for was within those bounds. I hope Senator McCallum will accept that as not intending in any way to hurt her in light of the present situation that we are in.

I ask that the point of order simply be withdrawn and that Senator McCallum continues with her speech. You will, in your good time, deal with the situation. Thank you, Your Honour.

Third Reading—Debate Adjourned

On the Order:

Resuming debate on the motion of the Honourable Senator LaBoucane-Benson, seconded by the Honourable Senator Gold, P.C., for the third reading of Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples.

Hon. Mary Jane McCallum: First, I would like to thank Senator Dalphond and Senator Duncan for their support. I would like to thank Senator Plett for his apology. I do understand the rules, and I do understand that there needs to be change, and that change will come. Thank you.

The first area is to amend both the title and preamble of the bill to include the word “implementation.” These proposals are intended to put an emphasis and bring clarity to the goal of implementing UNDRIP outright. Even if the bill does not result in the immediate implementation of UNDRIP, the objective of the bill is ostensibly to produce a result whereby UNDRIP is implemented in Canadian law. This portion of the amendment clearly establishes this goal.

The current language used in the preamble — “to achieve the objectives of UNDRIP” — has no binding effect requiring the government to implement the articles of UNDRIP. Incorporating the word “implement” requires that the declaration’s articles are given legal force and effect.

According to Minister Lametti, this bill, “recognizes that international human rights instruments, such as the declaration, can be used as tools to interpret Canadian law.” Such purpose, then, should be adequately reflected in both the title and preamble.

The second part of my amendment is to add a provision that indicates that this act is binding on Her Majesty in right of Canada. Simply put, the Crown must be held to the words and standards it enshrines in law. As per section 17 of the Interpretation Act:

No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights or prerogatives in any manner, except as mentioned or referred to in the enactment.

While arguments can be made that Bill C-15 would implicitly or necessarily bind the Crown — because its purpose would be frustrated if the Crown were not bound — the courts on this point are by no means clear or consistent in their interpretation. Federal legislation is likewise inconsistent. In light of this inconsistency and ambiguity, clear and unequivocal expression of legislative intent is required.

In addition, UNDRIP itself covers the minimum standards for survival and dignity of Indigenous peoples. These matters do not only relate to issues found within the portfolio of one minister, or indeed only the federal Crown. If the government’s intent is the implementation of UNDRIP, it would have implications beyond just Indigenous Services Canada or Crown-Indigenous Relations and Northern Affairs Canada but also for all federal ministries, departments and agencies. As such, at a minimum, it must be clear that this legislation binds Her Majesty in right of Canada to avoid any ambiguity down the road.

The third part of my amendment puts the words “force and effect” into the “Purposes of the Act.” This is a particularly important piece as, without it, Bill C-15 grants UNDRIP no legal force or effect in Canadian law. The language that is presently being used in the bill adds nothing new to the Canadian legal landscape, as UNDRIP is already used by courts to resolve statutory ambiguities, as they do with other international human rights instruments.

This portion of the amendment provides a clear and unambiguous commitment that UNDRIP is to be used by courts in interpreting Indigenous peoples’ constitutional rights, and federal obligations to Indigenous peoples. Furthermore, my suggested insertion of Article 4(c) ensures that Canada intends UNDRIP to be used in aiding the interpretation of section 35 constitutional rights and obligations. In the past, courts have indicated that they will not use UNDRIP to “breathe life” into section 35 unless legislation explicitly says that is its purpose. As such, this portion of the amendment provides the courts with the clarity and direction that they need.

The fourth part of my amendment adds the obligation to consult and cooperate with councils, governments and other entities that are authorized to act on behalf of an Indigenous group, community or people who hold rights, and to also adopt an approach that is specific to each group.

Without this portion of the amendment, Bill C-15 acknowledges diversity but does not commit to having diversity steer or inform the actions of Canadian political and legal bodies. Canada has previously stated its commitment to adopt a distinctions-based approach in implementing UNDRIP. Indigenous communities across Canada have a wide variety of cultures, traditions, spiritualities, languages and needs. Without committing to using this diversity to inform the implementation of UNDRIP, the bill will be ineffective in fulfilling the unique purpose and responsibility it has to different nations.

This portion of the amendment ensures that consultation and cooperation occurs directly with section 35 rights holders. To be clear, Indigenous political organizations or advocacy bodies such as AFN, MNC or ITK are not rights holders.

The fifth and final portion of my amendment enshrines a need for the minister, within 60 days of Royal Assent, to make public a process for Indigenous participation in both the development of the action plan, as well as its implementation by groups and individuals who are section 35 rights holders.

As has been stated multiple times, Indigenous inclusion in the drafting and creation of this bill was woefully inadequate. While the government fell short, again, of their fiduciary responsibility in drafting the bill, this part of my amendment would ensure that the government’s intended process for the participation of rights holders be made publicly available with regards to their involvement in the action plan. This assurance and transparency have been sorely lacking to date.

Honourable senators, I am hopeful that this breakdown of my amendment was helpful. Although the bill remains imperfect, these amendments would undeniably improve it. It is my hope that the concerns of peoples who will be directly impacted by this bill are heeded and that we break the cycle of prescriptive, colonial legislation making that has been emblematic of the divide that has continued to plague Canada’s relationship with the First Nations, Inuit and Métis peoples who share this land.

Therefore, honourable senators, in amendment, I move:

That Bill C-15 be not now read a third time, but that it be amended,

(a)on page 1, by replacing the long title with the following:

“An Act to implement the United Nations Declaration on the Rights of Indigenous Peoples”;

(b)in the preamble,

(i)on page 2, by replacing lines 44 and 45 with the following:

“tion with Indigenous peoples, to implement the Declaration;”,

(ii)on page 3, by replacing line 14 with the following:

“ety to implement the Declara-”;

(c)on page 4, by adding the following after line 25:

“Act Binding on Her Majesty

2.1 This Act is binding on Her Majesty in right of Canada.”;

(d)in clause 4, on page 5,

(i)by replacing lines 3 and 4 with the following:

“human rights instrument with force and effect in Canadian law;”,

(ii)by replacing line 6 with the following:

“Canada’s implementation of the Declaration in Canadian law; and

(c) provide that the Declaration informs the broad and purposive interpretation required of the rights and freedoms of — and commitments owed to — Indigenous Peoples in Canada, including those expressed in sections 25 and 35 of the Constitution Act, 1982.”;

(e)in clause 6, on page 5, by replacing lines 13 and 14 with the following:

“isters, prepare and implement an action plan to implement the Declaration.

(1.1) In consulting and cooperating with Indigenous peoples under subsection (1), the Minister and other federal ministers must do so in a meaningful way and must

(a) consult and cooperate with councils, governments and other entities that are authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982; and

(b) adopt an approach specific to each Indigenous group, community or people that respects that Indigenous group, community or people’s laws, traditions and processes.”;

(f)on page 6, by adding the following after line 11:

“Participation

6.1 In order to ensure effective and timely participation in development of the action plan under section 6, the Minister must — no later than 60 days after the day on which this Act receives royal assent — make public a process for participation in the development of the action plan and its implementation by individuals and groups including

(a) councils, governments and other entities that are authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982; and

(b) Indigenous organizations and communities.”.

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