Third reading of Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples—Amendment by Senator Carignan

By: The Hon. Pierre Dalphond

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Hon. Pierre J. Dalphond: Honourable senators, I want to explain why I am suggesting that we reject the three amendments proposed by Senator Carignan. I will talk about them in the same order as he did.

However, before I do that, I would like to remind you that Bill C-15 has two very different goals. The first is to add the principles set out in the UN Declaration on the Rights of Indigenous Peoples to the rules of interpretation of Canadian law. The second is to impose an action plan on the government for the review of federal laws.

The first proposed amendment is an addition to the preamble, which reads:

Whereas implementation of the Declaration must respect the respective jurisdictions of the Government of Canada and the governments of the provinces and territories;

In other words, it deals with the second purpose of Bill C-15, the action plan.

Bill C-15 imposes an action plan only for the federal government. Of course, the bill cannot legally impose such an action plan on provinces. The situation of the territories is different because their authority is derived from federal legislation. Of course, changes to territorial legislation to better align with the declaration will trigger consultation obligations with Indigenous peoples, and logically, the territorial governments.

For the provinces, as the Constitution Act, 1867 states, Bill C-15 must respect the division of powers.

Let me refer to section 91 of the Constitution Act, 1867, which states:

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces . . . .

In other words, Parliament may not adopt laws that touch on subjects falling under the jurisdiction of the provinces.

In a complementary way, section 92 of the same constitutional document provides that provinces have exclusive jurisdiction in making laws relating to certain subjects:

In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated . . . .

Then there is a famous list.

In sum, it is clear that Parliament may not make laws on behalf of provinces or on matters falling under provincial jurisdiction and vice versa. That is why section 5 of the act establishes an action plan for ensuring that federal laws, and only those federal laws, are consistent with the principles of UNDRIP. In other words, the action plan is drafted to apply only to the laws adopted by Parliament on the subjects that are assigned to that body.

The second amendment proposed by Senator Carignan is to replace “Canadian law” with “laws of Canada” in section 4(a) of Bill C-15. This amendment is designed to address the first purpose of Bill C-15, which is found at section 4(a) of the bill, which, as I said previously, is to uphold current case law and formalize the use of the United Nations declaration as an interpretive tool guiding courts in the interpretation and evolution of Canadian law.

In a letter sent earlier today by the Minister of Justice to all members of the Senate, he wrote:

. . . the existing and well-established legal principle that international human rights instruments, like the UN Declaration, can be used to help interpret and apply Canadian laws. This principle applies to the interpretation of federal laws. It also applies to interpretation of the Constitution of Canada and provincial laws.

By replacing “Canadian law” with the words “laws of Canada” at clause 4(a), Senator Carignan’s amendment would render that clause factually inaccurate and inconsistent with the current practice of using international instruments, including UNDRIP, to aid in the interpretation of all Canadian law, including the Constitution of Canada, federal laws, provincial laws and the common law, which includes, incidentally, federal common law.

As you know, a significant portion of Canadian law, even at the federal level, is not written in statutes. It is based on customary law — notably in the area of Maritime law — routinely applied by the Federal Court. Senator Carignan’s amendment would change the current statement of fact found in clause 4(a) to affirm the declaration as a universal international human rights instrument with application to federal laws only, when, in fact, it is already used much more broadly to inform judgments on treaty rights protected by section 35 of the Constitution Act, 1982.

As the Supreme Court of Canada explained in Baker v. Canada (Minister of Citizenship and Immigration):

. . . the values reflected in international human rights law may help inform the contextual approach to statutory interpretation . . .

The important role of international human rights law as an aid in interpreting domestic law has also been emphasized in other common law countries . . . . It is also a critical influence on the interpretation of the scope of the rights included in the Charter.

Trying to limit it to federal laws will be to limit the current applications of these principles. Specific to UNDRIP, in Nunatukavut Community Council Inc. v. Canada (Attorney General), the Federal Court found that UNDRIP could be used as a tool to inform the interpretation of domestic laws:

. . . UNDRIP may be used to inform the interpretation of domestic law. As Justice L’Heureux Dubé stated in Baker, values reflected in international instruments, while not having the force of law, may be used to inform the contextual approach to statutory interpretation and judicial review . . . .

I now turn my attention to the third change proposed by Senator Carignan. It deals with section 6, a provision defining the action plan. It would require the federal government to add provinces in the consultation process with Indigenous peoples on the design of the action plan to achieve the objectives of the UNDRIP principles in federal law. Senator Carignan is right to stress the importance of the relationship the federal government and the provinces have, which is central to our federalism, but Bill C-15’s focus is on a separate relationship also of great importance, the relationship between the federal government and Indigenous peoples.

As the APPA Committee report on Bill C-15 noted, there is:

. . . a lack of a clear, inclusive, and defined process for co-developing legislation at the national level. . . .

Going forward, the committee underscores the need for consultation to be clear, substantial and understandable. All Rights Holders, including Treaty Rights Holders and interested Indigenous communities must have the opportunity to be involved from the start.

Bill C-15 aims to put in place a clear, inclusive and defined process in regard to federal law-making, and that process will involve the federal government and Indigenous peoples.

What Senator Carignan is asking is that the federal government also involve the provinces in the federal government’s consultations with Indigenous peoples in connection with the action plan. By adding a third party, the provinces, it that will alter the relationship between the federal government and Indigenous peoples that Bill C-15 aims to rebuild. This will, of course, complicate the trust-building exercise that the bill seeks to implement but also raises the question of whether the provinces will be required to involve the federal government in their consultations with Indigenous peoples if and when they decide to adopt an action plan to incorporate the UNDRIP principles into provincial law.

As you know, the Province of British Columbia has already implemented UNDRIP principles in the laws of B.C., and this without any federal involvement. With great respect, I don’t think that the third change proposed by Senator Carignan will be helpful but will only complicate the process we are trying to build. In addition, I think it contradicts the first change he is proposing, where he wants to reaffirm the importance of recognizing the separation of power.

The action plan contemplated in clause 6 of Bill C-15 does not necessarily exclude provinces from future consultations that precede federal legislative action, especially in areas of joint concern. Indeed, on lawmaking matters that may affect provinces, the federal government will continue to consult with provinces as it currently does in the spirit of a good cooperative federalism. That consultation process is not negated by Bill C-15, but the consultation process referred to in clause 6 will only lead to a more complex framework to guide future collaboration between the federal government and Indigenous peoples to achieve the objective of UNDRIP.

To sum up, I repeat that what one part of Bill C-15 aims to do is to establish an action plan regarding the federal government’s duties toward and the relationship with the Indigenous peoples of Canada and not the provincial duties toward the same Indigenous peoples. Provinces may choose to establish a similar plan in connection with provincial laws, regulation and services they provide. As an aside, I am hopeful that the federal Parliament’s adoption of Bill C-15 will inspire provinces to adopt similar legislation in the near future in demonstrations of our entire country’s commitment to reconciliation.

In conclusion, the amendment before us doesn’t seem to address any real problems and doesn’t deserve to be passed. Some might wonder if this isn’t another strategy to return the bill to the House of Commons and delay, or even prevent, as in 2019, the implementation of the United Nations Declaration on the Rights of Indigenous Peoples into Canadian law. For these reasons, I’ll be voting against the amendment and I invite you to do the same. Thank you, meegwetch.

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