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

By: The Hon. Pierre Dalphond

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Hon. Pierre J. Dalphond: Honourable senators, I rise in support of Bill C-15, respecting the United Nations Declaration on the Rights of Indigenous Peoples adopted in 2007.

Bill C-15 has two legal purposes, as I said yesterday, set out in clause 4 of the act. The first is to add the principles set out in the UN declaration to the rules of interpretation of Canadian law. The second purpose is to impose a framework for the federal government’s implementation of the declaration in federal law.

UNDRIP is not an international treaty whereby a state commits to act accordingly upon signing. Rather, it represents the international community’s expression of common standards of achievements for all people and nations, with declaratory influence, interpretive availability and customary force in international law.

With UNDRIP, we have a universal human rights declaration contextualized to Indigenous peoples who have, to quote the bill’s preamble, “. . . suffered historic injustices as a result of . . . colonization and dispossession of their lands, territories and resources . . . .”

As Senator Francis reminded us in his speech:

The UN declaration is the result of decades of work by Indigenous leaders. It does not create new rights. Instead, it sets out existing international human rights standards that are specific to the circumstances of Indigenous people. It is also a valuable tool for promoting the compliance of state parties to their obligations.

Like other UN declarations, UNDRIP is a call to action to countries around the world. It is thus up to the governments and parliaments around the world to respond by upholding its principles within their jurisdictions.

As you may know, in domestic law, which means Canadian law here, UN declarations are not binding. They are statements of important principles, however, that may be considered by domestic courts, 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 . . . .

As Senator Gold reminded us yesterday and Minister Lametti previously, UNDRIP has actually been referenced by Canadian courts to inform decisions relating to the interpretation of laws and duties of governments in Canada. With subclause 4(a) of Bill C-15, the declaration will now be fully recognized as one more interpretive tool for Canadian courts to use.

This is significant. As Senator Brian Francis relayed yesterday, many witnesses before the Aboriginal Peoples Committee have spoken about the importance of this affirmation, given that most lawyers, judges and the broader public remain ignorant or resistant to its application and interpretation.

Before I conclude on the interpretive purpose of Bill C-15, let me add that if a provision of the declaration is contrary to a treaty right in any instance, the treaty right will prevail, because such rights are entrenched and protected by section 35 of the Constitution Act, 1982, prevailing over rules of interpretation established in any statute. Incidentally, this point is clearly reaffirmed in clause 2 of the bill.

I now move to the bill’s second purpose, which is the federal government’s response to UNDRIP’s calls to action. Under clause 5 of the bill, the government must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure the consistency of federal laws with the declaration instead of waiting for disputes and court decisions. In other words, the government must be proactive. This will be achieved through the action plan contemplated at clause 6 of the bill.

Bill C-15, like former member of Parliament Romeo Saganash’s Bill C-262, sponsored in this place by our former colleague Senator Sinclair, is not only a federal response to the declaration itself but is also a response to Calls to Action 43 and 44 of the Truth and Reconciliation Commission that he chaired, as well as Call for Justice 1.2(v) of the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls.

Of course, UNDRIP is also a call to action for provincial governments. I hope they will, like British Columbia has, respond to this UN call to action reiterated by the TRC.

But for now, it comes down to us to respond. In my view, as senators, we must ensure that the Senate is on the right side of history. This is particularly the case as the bill before us embodies an election commitment and the democratic will of Canadians to accept the truth of our history and advance reconciliation in a transformative way. We must face history. The Senate is one of the places where the cultural genocide was perpetrated. With the adoption of Bill C-15, we can initiate a process that may help to rebuild our relationship with the Indigenous peoples of Canada.

As a senator from Quebec, I want to express my solidarity with Indigenous peoples in their long and difficult quest for self-determination within the Canadian federation. We now realize the egregious mistakes of our colonial past and we promise, including through the action plan, to review our laws, regulations and our way of doing things in order to respect the constitutional rights of Indigenous peoples under section 35 and no longer wait to be forced by the courts to fulfill this responsibility.

Finally, I have a few comments around the meaning of “free, prior and informed consent,” especially in resource development.

Explanations of this concept in House of Commons and Senate proceedings have been provided by both the Minister of Justice and legal scholars. As Minister Lametti said at the Aboriginal Peoples Committee on May 7:

Free, prior and informed consent is about working together to build consensus through dialogue and other mechanisms and enabling Indigenous peoples to meaningfully influence decision-making; it is not a veto over government decision-making. FPIC does not remove or replace government decision-making authority but it sets into place a process which will ensure meaningful participation.

Lawyer and former member of Parliament Romeo Saganash from Quebec stated at the House of Commons committee on March 11:

Veto and FPIC are two different legal concepts. One is absolute, and that is veto, whereas as the other one is relative. Like all human rights, the right to free, prior and informed consent is relative. We have to take into consideration a lot of other factors and facts and the law and the circumstances of a given situation. . . .

Supporting this interpretation, the declaration contains a balancing provision in Article 46. In contemplating limits on Indigenous rights, article 46 reads, in part:

Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.

The UN Expert Mechanism on the Rights of Indigenous Peoples supports this point. From its 2018 study:

Any decision to limit indigenous peoples’ rights within the exceptional circumstances of article 46 must be accompanied not only by necessary safeguards, including redressing balance-of-power issues, impact assessments, mitigation measures, compensation and benefit sharing, but also by remedial measures taking into account any rights violations. . . .

Accordingly, free, prior and informed consent contemplates a contextual analysis in any dispute resolution, similar to what the Supreme Court of Canada said in the Marshall case on fishing rights.

However, the whole point of Bill C-15 is to move away from adversarial dynamics, including litigation, and toward meaningful participation and partnership. In resource development, buy-in from communities, such as through share ownership, is the basis for investor certainty, which is very important, as Senator Tannas pointed out yesterday. Indeed, Bill C-69, adopted in 2019 for environmental assessments, already referred to the declaration. Going forward, the idea is to avoid court fights and social unrest from land infringements, which in the absence of treaties — such as in many areas of B.C. — are viewed as illegitimate by many Indigenous First Nations.

I also note that Bill C-15 does not impose any obligations on nations. Participation in the action plan is voluntary, and nothing is taken away. Bill C-15 simply provides a clear process for ensuring that federal laws are drafted and adopted in a manner consistent with UNDRIP before they reach the courts, if they ever do.

Finally, I was pleased to see that the House of Commons committee added a paragraph to the preamble of Bill C-15 to repudiate the racist doctrines of discovery and terra nullius. If the Senate matches the House of Commons in its commitment to reconciliation, we can place those doctrines where they belong, in the garbage bin of history, with all other notions of White supremacy.

With Bill C-15, let us take an important step forward together as a nation of nations. Thank you. Meegwetch.

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