Senate Debates UNDRIP Bill - Part 2

We're happy to share with you that Bill C-262 - An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples - was recently debated by the Senate. We're hoping the third reading happens before June, when Parliament is dissolved before the election.

For part one of this transcript, please see this post.

Here is part two of the transcript from the debate, a speech by Senator Christmas:


United Nations Declaration on the Rights of Indigenous Peoples Bill

Second Reading—Debate

Hon. Dan Christmas: Honourable senators, I rise today to speak in emphatic support of Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous People.

As I begin, I acknowledge that we meet today on the unceded lands of the Algonquin Nation. I also want to acknowledge and offer thanks to Member of Parliament Romeo Saganash for his tireless work in developing this bill and in seeing it passed by the other place. I’m honoured to be working with Senator Sinclair and many of our colleagues here in the Senate towards seeing the hopefully swift passage of Bill C-262 by this chamber.

As most of you know, I have been a member of this place now for a little over two years. In that time, I have sat and I have watched; I have listened and I have learned. I have seen the best of this place and I have realized the significant impact we can have here in our capacity as senators, as legislators. When I was named to this noble institution, I made a pledge to myself that I would do all I could to help enact the 94 Calls to Action of the Truth and Reconciliation Commission. Absolutely fundamental to fulfilling that pledge was and is the United Nations Declaration on the Rights of Indigenous Peoples.

I believe I have been called to this place at this time to help make this happen. As President Abraham Lincoln once said of his own journey and calling, “I will prepare and some day my chance will come.” Today, in your midst, I’m proud to say that I have prepared and my chance has come — a chance to speak to the meaningful purpose of Bill C-262 and the opportunity it represents to be a true instrument of reconciliation. You see, I view the adoption of the United Nations declaration as ground zero in the reconciliation between Canada and its Indigenous peoples.

The key reference point in the 94 Calls to Action can be found in the tenets of the UN declaration. Quite simply, everything in the Calls to Action flow from the ultimate adoption of the UN declaration. The reason for this is simple, if only people will see it: The declaration gives everyone — the Government of Canada, the provinces, the territories, the people of Canada and all of its Indigenous peoples — a common denominator.

What is this legislation all about? Bill C-262 calls for Canada, through the adoption of this legislation, to make a number of commitments, which Senator Harder just outlined: first, that Canada would recognize UNDRIP as a universal human rights instrument with application in Canadian law; second, that Canada will take all measures necessary to ensure that the laws of Canada are consistent with UNDRIP; third, that Canada, in consultation with Indigenous people, will develop a national action plan to achieve the objectives of UNDRIP; and, fourth, that annually the government will provide a report back to Parliament identifying the implementation of measures taken by Canada and the national action plan.

In order to fully appreciate the legal implications of the adoption of Bill C-262, it is important to first understand the legal status of UNDRIP as a piece of international law.

In the international context, there are two primary sources of law, as defined by the International Court of Justice. Such sources of law are considered the “hard law,” or lex lata, of international law — laws that are considering binding upon those states that are a party to it. This would include instruments such as international treaties and international conventions, which, once committed to by a state, bind the state to adhere to them.

However, there exists another source of law in the international realm that is also significant to states, although it is not legally binding on the state in the same manner as hard law. Such law is often referred to as “soft law,” or lex ferenda, and can take the form of UN declarations, UN resolutions, handbooks of UN agencies, and other international communications.

UNDRIP, as an international declaration, is a form of soft law and, as such, is not binding upon the state in the same manner as international conventions and treaties.

The fact that UNDRIP is a form of “soft law” and not “hard law” is key and fundamental to understanding the legal implications of both Bill C-262 and UNDRIP in the Canadian context. Thus, in its present state, UNDRIP will never have the same legal weight as an international convention or international treaty.

Honourable colleagues, it is very important that, when considering arguments or evidence as to why Bill C-262 should not be passed, this reality should be made clear. The bold truth of the matter is this: If we can all agree that the UN declaration is the standard for achieving reconciliation, then for once we’re in the same room, all together.

So what has been preventing this from happening? What I’ve found is that the right to self-determination hasn’t been the stumbling block. As we’ve been hearing over and over again as of late, and even today, the big fear is free, prior and informed consent by and from Indigenous peoples. This is due in no small part to the way it’s been painted in the public discourse, particularly around resource development, that free, prior and informed consent constitutes an Indigenous veto on any project.

I was grateful to Senators Sinclair and Tannas for beginning the dialogue on consent here in the chamber last November and for beginning the dialogue on the notion of Indigenous veto. I’m anxious that the debate be permitted to continue when the bill is referred to committee. But to remind honourable colleagues, Senator Sinclair pointed out that we have “. . . a growing body of case law here in Canada which has very clearly indicated that free, prior and informed consent does not, in fact, amount to a veto.”

And yet, there remains much public discourse about the Indigenous peoples being considered as “anti-development” when it comes to energy, oil and gas projects.

I’m sorry, but I subscribe to a much different school of thought. My perspective is that in order for Canada to really allow Indigenous people to buy into Canada, they need to be allowed the freedom and the choice to say either yes or no. Many seem afraid that Indigenous people will say, “no.” I believe there are a lot of Indigenous people today who are ready, even eager, to say, “yes.”

There are myriad things that Canadians don’t often consider in respect of the Indigenous perspective. I’d like to share some of those with you now. There have been and are a lot of projects that are undertaken on our territories, on our lands and upon our waters. Up until recently, we’ve been pretty much excluded from participating in them. Given this, you might be able to understand why Indigenous people might choose to say, “no.”

This “no” is understandable because in the past we’ve been basically cut off from our own lands. Now that the law has changed and the courts have said that Indigenous people must be consulted, a lot of Indigenous people, after having been excluded for so long, default to their natural reaction, which has been to say, “no.”

Canada needs to realize that this is changing. There are other people out there across Canada, a rising, emerging economy of young Indigenous people eager to develop their lands and their resources, keen to gain employment, driven by entrepreneurship to want their own businesses and build their own prosperity. For this growing segment in the Indigenous community, the UN declaration is no less than the road map to prosperity, and not just prosperity for us as Indigenous communities, but indeed prosperity for all of Canada. That’s why I think this is so important. That’s why I believe that this bill is legislation whose time has come. That’s why we must get to committee as soon as possible and ultimately pass it without delay.

We should all remember that the development of the UN declaration itself took more than 30 years culminating in its adoption by the UN General Assembly in 2007. Its 46 articles characterize the minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world. In May 2016, the Government of Canada endorsed the UN declaration with a commitment to its full and effective implementation. In doing so, it was acknowledged that it was time for the Government of Canada to take action to ensure that the standards set out in the UN declaration were reflected in all federal laws, policies and operational practices.

Honourable colleagues, let me be candid. I wish that this bill was government legislation. The fact that it is not in no way diminishes its importance. Its purpose and intent are nothing but noble. Its core elements are pivotal to the broader transformative shift under way in terms of the recognition and implementation of the rights of Indigenous people.

Clause 3 of the bill acknowledges that the UN declaration, like other human rights instruments for which Canada has expressed support, has application in Canadian law as a source that can be drawn upon to inform the interpretation of domestic law and the exercise of administrative discretion under domestic law.

The bill also provides for important and lasting mechanisms that will require the government to continue the work that it has already undertaken to review federal laws, policies and practices with a view to harmonizing them with section 35 of the Constitution as well as the UN declaration and the Truth and Reconciliation calls to action.

Likewise, clause 4 of the bill creates a legislative statute which requires the Government of Canada to take all measures necessary to ensure the laws of Canada are in harmony with the UN declaration. The bill doesn’t specify what measures will need to be aligned with federal laws. This leaves considerable room for the government to work in partnership with Indigenous peoples and in a way that builds on Canada’s constitutional framework to develop these new measures.

In that sense, the bill respects article 38 of UNDRIP, which states:

States, in consultation and cooperation with Indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this declaration.

In addition, Bill C-262 provides accountability mechanisms, including a national action plan, to be developed in partnership with Indigenous peoples, to achieve the objectives of the UN declaration and the obligation to report on progress to Parliament. Through these mechanisms, the government’s progress will be monitored and measured, as it should be.

Reconciliation means many different things to different people. However, one commonly understood aspect of reconciliation is that we acknowledge our past and take actions to build an improved future. In that sense, as a first step, we must acknowledge the breadth of transformation that is required to enable a tangible and lasting change to Crown-Indigenous relations. The history, in which Indigenous people have had to survive the imposition of colonialism, is long. The impacts have been devastating.

At the same time, the roots of colonialism have long settled into our institutions, our legislative frameworks, and our perceptions of the world around us. Sometimes it’s visible and sometimes it’s harder to see. We cannot transform this reality with one bill alone. To truly turn the tide, a new foundation, which includes the UN declaration, and living up to the promise of section 35 of our Constitution, is required. From this foundation, we can begin to deconstruct our colonial reality and in its place see an increase in self-determining and self-governing Indigenous nations that are able to thrive socially, economically and culturally. This is what reconciliation means.

As I close, I’d like to share some words of wisdom I received recently. Steve Bell is a veteran Canadian singer/songwriter and author from Winnipeg. He recently wrote to me, and I believe to all honourable senators, as he states:

This country that we mutually hold dear is at a watershed moment of great importance.

Steve offered prayers for our courage and wisdom as we consider all that we must do in order to move us forward according to the best intentions to be a “fair” nation. By “fair” he invoked a double meaning of the word. Fair as in “fair is the meadow” and fair as in “fair play.” In other words, fair according to both beauty and justice.

He reminded us, and again I’m quoting from Mr. Bell’s letter:

Countless individuals, institutions, civil and religious organizations agree that we need legislation to hold current and future governments to account to uphold this minimum of human rights standards for all people, but with particular attention to First Nations, Inuit and Metis peoples who have suffered systemic exclusion from the benefits of these basic rights.

Great harm has been done — [...]

And for healing to occur, there first needs to be a commitment to stop harm. Bill C-262 is such a commitment and sets the stage for a new and mutually fruitful relationship with Canada’s First Nations, whom John Ralston Saul rightly calls “the senior founding pillar of our civilization.”

We look forward to the day that we can truly call our country “fair” in accordance with both beauty and justice.

Honourable senators, there is perhaps nothing more fair, more beautiful than pursuing the affirmation of rights. And it’s a key reason why we sit in this place.

This is a bill, the provisions of which build upon our nation’s Indigenous policy framework regarding our place and our role on the international stage and our constitutional duty to protect and advocate on behalf of minorities. I’m asking that we all work with vigour and determination to see second reading debate concluded by no later than March 21 in order to get this bill to committee and one step closer to adoption.

This is the right thing to do. This is the fair thing to do. This is the honourable thing to do.

As I close, let me leave you with the words of John Fitzgerald Kennedy who affirmed that, “In giving rights to others which belong to them, we give rights to ourselves and to our country.” This bill helps us to do just that. I commend to you its referral to committee without any delay. Wela’lioq. Thank you.