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

By: The Hon. Brian Francis

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Hon. Brian Francis: Honourable senators, I join you today from Epekwitk, the ancestral and unceded territory of my people, the Mi’kmaq, to speak in unequivocal support of Bill C-15.

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.

Before the declaration was adopted by the UN General Assembly in 2007, many states did not recognize the status of Indigenous people as rights holders under international law. While 144 states later voted in favour, Canada was one of the four to reject it. Even when Canada reversed its position in 2010 and endorsed the declaration, it did so with qualifications, emphasizing that it was only aspirational and not legally binding. In 2016, Canada went on to endorse the declaration without qualification and committed to its full and effective implementation.

The context that may be unfamiliar to some is that it was only because of mounting pressure that in November 2017 the federal government went on to support Bill C-262 in the House of Commons. That bill was adopted in the other place in May 2018, with 206 votes in favour and 79 against, but after months of unnecessary delays and obstructions, it died on the Order Paper of the Senate on National Indigenous Peoples Day in 2019. That outcome fuelled widespread disappointment and frustration across the country. In response to calls from Indigenous people urging Canada to immediately implement the UN declaration, this federal government introduced Bill C-15 last December.

The progress made in past decades is not due to the genuine willingness of federal governments, both Conservatives and Liberal, to heal the broken relationship with First Nations, Métis and Inuit. It is due to the long and hard-fought struggle, both domestically and internationally, to ensure recognition, protection and fulfillment of our inherent rights.

Honourable senators, Bill C-15 sets out a legislative framework to advance the implementation of UNDRIP in Canada, and its passage is critical to advancing national reconciliation. The bill explicitly affirms that UNDRIP, as a universal, international human rights instrument, is applicable in Canadian law. Although provincial and federal courts already use it as a source of interpretation, Professor Naiomi Metallic and others have spoken about the importance of this affirmation, given that most lawyers, judges and the broader public remain woefully ignorant and resistant to its application and interpretation.

Once ratified through Bill C-15, UNDRIP will no longer be a mere political aspiration, but rather an international instrument that is legally binding on the state. In this regard, the bill has the potential to contribute to the advancement of the rights of Indigenous people, including through the evolution of jurisprudence on section 35 rights.

The bill also requires that current and future federal governments work in consultation and cooperation with Indigenous people to bring federal laws and policies into alignment with the declaration, as well as to develop an action plan to achieve its objectives. Using a distinctions-based approach, the action plan must be tabled in both Houses of Parliament and be made public within the two-year timeline. If, for instance, deadlines are not met or issues arise that cannot be resolved, committees in both places will be able to conduct hearings and make recommendations. Indigenous people will be able to voice their views and concerns at this stage. These legal requirements add an important layer of transparency, oversight and accountability. It is not lost on me that the transformative change some of us envision following the adoption of the bill will not happen overnight. We know that it is going to take a long time and hard work, and we will not always get it right. However, this process cannot be delayed any longer.

Honourable senators, Bill C-15 has generated some concern, and even fear, because of misunderstandings. To assist in your deliberations, I will do my best to provide some clarity now. Despite some suggestions, Bill C-15 does not impose new obligations on provincial, territorial or municipal governments. The bill only imposes obligations on the federal government. The preamble specifically recognizes that it is up to each of these jurisdictions to establish their own approaches. That is exactly what British Columbia did in 2019, and what the Northwest Territories is working toward. We cannot forget that the declaration is an international human rights instrument that is presently binding on Canada through the presumption of conformity and customary law. As a result, all levels of government — federal, provincial, territorial and municipal — must respect minimum human rights standards of Indigenous people. In other words, our different jurisdictions cannot just pick and choose which rights are convenient to uphold.

There has been much fear mongering that the right to free, prior and informed consent will, through the adoption of Bill C-15, provide Indigenous people with a veto over resource development and thus threaten economic opportunities. That is false. The right to free, prior and informed consent, or FPIC, does not amount to a veto. In fact, this word is not used in the declaration or the bill. FPIC goes beyond saying “yes” or “no.” It is concerned with the effective and meaningful participation of Indigenous people in decision-making processes that affect us before actions are taken. Although governments have an obligation to consult and cooperate in good faith with Indigenous people on proposed projects involving our lands, territories and resources, as well as in a wide range of other contexts, industry and other actors are also required to uphold minimum human rights standards.

Dr. Wilton Littlechild, for example, said that FPIC is key to upholding our right to self-determination and self-governance; protecting our lands, territories and resources; reducing or eliminating costly delays because of conflict and litigation; and facilitating equitable partnerships. Grand Chief Abel Bosum spoke about the gradual but significant advancements made by the Cree Nation in northern Quebec over the past four decades with regard to involvement in economic development projects. We also heard from the National Indigenous Economic Development Board, the National Aboriginal Capital Corporations Association, the Canadian Council for Aboriginal Business, the Reconciliation and Responsible Investment Initiative and others about the importance of Indigenous rights recognition through the passage of Bill C-15 to build a more prosperous and equitable future for Indigenous peoples and Canada.

Before concluding, I want to address the argument that Bill C-15 has been rushed through Parliament without enough consultation. It is true that some rights holders have indicated that they were not properly consulted. Some critics of the bill have pointed to this issue as a reason for the bill not to pass. However, the fact remains that there is overwhelming support for Bill C-15 by Indigenous peoples across Canada. Yes, there is some opposition, but that is to be expected given the distrust of governments at all levels due to past and present actions. The Committee on Aboriginal Peoples heard that the federal government undertook 33 bilateral sessions with the Assembly of First Nations, ITK and the Métis National Council. In addition, it held over 70 virtual sessions. Some recommendations made during this process became parts of Bill C-15.

We cannot forget that both the TRC and the MMIWG called on Canada to pass legislation to implement UNDRIP. Dr. Littlechild told our committee:

We as the Truth and Reconciliation Commission held the longest and most extensive consultation of Indigenous peoples. Over 7,000 witnesses came in front of us and talked about the UN declaration.

In terms of the time frame, how much time do we need?

Professor Metallic also reminded us that Canada has been discussing the contents of this bill for over years. Romeo Saganash, the former NDP MP who is a Cree from northern Quebec, introduced private member’s bills in 2014 and 2016 to implement the declaration that were defeated. He additionally conducted extensive cross-country meetings.

The relevant committees in the House and Senate examined Bill C-262 in 2018 for over 15 days, and Bill C-15, which builds upon it, has received even more parliamentary scrutiny. The House committee heard from over 40 witnesses and received 48 written submissions. The Senate committee heard from 89 witnesses in total and received 52 written briefs. Based on this context, Professor Metallic went on to state the following:

There is no substantive change in the law here, simply a clarification of the state of existing law and a commitment to a process to make future substantive changes, which explicitly requires Indigenous participation. There are therefore no adverse impacts of the law; the effects of the law are positive at best, or neutral at worst. Given that any future changes in the law will require consultation with Indigenous people, plus the five plus years of discussion over the contents of the bill, I think it is time for us to move forward and get to the real work of implementing the Declaration.

I completely agree with the views of these two renowned Indigenous experts. We cannot let this historical opportunity pass us by again. Colleagues, the critics of the bill have argued that the consultations conducted during both Bill C-262 and Bill C-15 are different matters. I strongly disagree.

The initial draft of Bill C-15 that was provided to Indigenous people during early consultations was Bill C-262. We need to consider both bills together to fully understand the extensive consultation that has occurred in the last five years and the significant contributions that Indigenous people have made since. The critics have also argued that the federal government did not fulfill its duty to consult Indigenous people when it came to the development of Bill C-15. However, in accordance with Mikisew Cree First Nation v. Canada from 2018, this assertion is contrary to the law as it stands today. If we look at the consultation that has been undertaken on Bill C-15, some could argue that the federal government likely exceeded what it was legally required to do.

Arguments have also been raised by critics as to whether there should be consensus by Indigenous people on Bill C-15. Yet it is unreasonable to expect 654 First Nations in Canada, without including Métis and Inuit, to reach such a threshold. And why should we if we do not expect the same of the non-Indigenous population? We cannot even agree amongst ourselves here.

Colleagues, since coming into existence in 1867, the Senate has played a key role in the genocide of Indigenous people through the imposition of laws and policies, such as the residential schools, which were designed to exploit, subjugate and erase us and which have contributed to the staggering rates of violence, death and suicide that we experience in our communities today.

That is the hard truth that this chamber of sober second thought must atone for. Indigenous people not only deserve better, but demand better from each of us. Words and promises are not relevant to real reconciliation. What matters are tangible actions and outcomes. I therefore implore you to vote in favour of Bill C-15 without delay. Wela’lioq. Thank you.

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