Speech: Bill C-262 (UNDRIP) needs careful examination and should not be rushed
Hon. Donald Neil Plett: Colleagues, I know it’s late, but I do want to say a few words on 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.
Let me begin by commending MP Romeo Saganash for his work in bringing this bill forward and Senator Sinclair’s efforts to advocate for it in this chamber. This private member’s bill has noble objectives, and while I have concerns about the legislation, I respect the intent behind it.
As explained by MP Saganash in the other place:
"Bill C-262 would also allow us to begin to address the past wrongs and injustices that were inflicted upon Indigenous peoples. This is the main objective of Bill C-262."
Colleagues, injustice is something that everyone in this chamber opposes. Of that I am certain. When we see injustice, it troubles us, and perhaps the only thing that troubles us more is when we see injustices that are not being made right.
Over the past few weeks, I have been accused on social media, in mainstream media and by email of blocking this bill and not supporting reconciliation and the redress of wrongs endured by Indigenous peoples in this country. I want to say clearly and without qualification that this is categorically wrong. It is unfortunate that that misunderstanding has been fuelled by, indeed, some members of this Senate.
In actual fact, I am very sympathetic with those who are supporting this bill and those who have contacted me asking for its speedy passage. I recognize that there is a genuine desire to see true reconciliation with the Indigenous peoples of Canada. In spite of what some people have insinuated, I too share that desire.
But colleagues, the question at hand is how to achieve that objective. I am far from convinced that Bill C-262 will accomplish this or even move us closer to that goal.
I am not a lawyer and I am not a judge. I have been a plumber and a businessman. For the last 10 years, I have had the privilege of serving my country as a senator. As a senator, my job, like yours, is to examine every piece of legislation, with a view to both its public policy purpose and whether or not it will achieve that purpose.
It is not wise to support a bill simply because it embodies noble sentiments. We must be convinced that the legislation will actually achieve what it sets out to do.
Taking the time to properly examine legislation is not blocking legislation. It is at the very heart of what this chamber is supposed to do and is expected to do.
Honourable senators, if ever there were a bill that needed sober second thought, it is this one. The reach and impact of this 14-page bill will be sweeping and extensive. It instructs the Government of Canada to take all necessary measures to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples. We are not considering a typical bill but one which will quite possibly have implications on every other piece of legislation in this country. Some academics have even warned that there will be implications on how our Constitution is interpreted by the courts.
To be frank with you, I find it somewhat difficult and quite concerning that people both inside and outside of this chamber are trying to goad senators into pushing this bill through before its implications have been fully examined and properly understood.
I would like to remind this chamber of the words of the Minister of Indigenous and Northern Affairs on November 12, 2015 when she said the following:
"We will redouble our efforts across all Government departments, provinces and territories, municipalities and with all Canadians to fully understand and implement the United Nations Declaration on the Rights of Indigenous Peoples."
Note that the minister said “fully understand” and then “implement.” Why are we being pressured to hurry and implement the bill when we are nowhere near fully understanding its implications?
I can tell you why and it’s actually quite simple. The reason there is significant pressure to put this bill through before this summer is because the Liberal government chose to leave it vulnerable to an election call. This, colleagues, is not finger-pointing but rather it is fact. If the government were truly committed to implementing UNDRIP, they would have introduced government legislation to do so but, as you know, the federal government did no such thing. They flip-flopped.
First, they were supporting UNDRIP in the election; then they called it unworkable in Canadian law. Finally, they gave tepid support to Bill C-262. Their actions have not lined up with their rhetoric. This raises serious questions about their sincerity on the issue. On the one hand, they want Canadians to believe they fully support UNDRIP. Yet the best they could do was tag along on a private member’s bill. Then when the bill proceeds at the usual pace of non-government legislation, they have the gall to feign exasperation and send this chamber a message demanding that we hurry up and pass it.
I am struggling to think of another piece of legislation which has been handled in such an irresponsible and contemptuous manner. Honourable senators, the concerns over the impacts of this legislation do not originate with me. They have been the focus of much public debate for many years. As you know, Canada’s Conservative government, along with the United States, Australia and New Zealand, did not initially sign on to this resolution in 2007.
In 2010, the Canadian government issued a qualified statement of support on UNDRIP referring to it as an aspirational document and noting that there remained significant concerns about its application. In part, that statement said the following:
"...Canada placed on record its concerns with various provisions of the Declaration, including provisions dealing with lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples; States and third parties. These concerns are well known and remain."
Many of these concerns have still not been resolved and continue to be echoed today. You may recall, on July 12, 2016, at the Annual General Assembly of the Assembly of First Nations, Canada’s Minister of Justice said the following:
"Simplistic approaches such as adopting the United Nations declaration as being Canadian law are unworkable and, respectfully, a political distraction to undertaking the hard work actually required to implement it..."
The minister was expressing clear reservations about how UNDRIP would be applied or implemented within the Canadian context.
This is a very common concern, honourable senators. Blaine Favel and Ken Coates, with the Macdonald-Laurier Institute, wrote the following in their publication Understanding UNDRIP:
"But there has been significant confusion and uncertainty about what it means to implement the Declaration. There is particular concern about the compatibility of certain elements of UNDRIP with Canada’s legal, political, and constitutional architecture. This poses a major challenge for the government as it seeks to meet such heightened expectations."
In a brief submitted to the House of Commons Standing Committee on Indigenous Affairs, Thomas Isaac and Arend Hoekstra also raised concerns about Bill C-262 and they said:
"Though the mechanics of Bill C-262 are simple in design, that simplicity is problematic. UNDRIP is a blunt instrument, developed in an international setting, that is not reflective of Canada’s world-leading legal protections for Indigenous rights..."
They went on:
"However, by mandating the imposition of UNDRIP into the highly tuned Canadian Indigenous rights regime, Bill C-262, as it is currently drafted, risks introducing substantial uncertainty and further rhetoric into the Canadian Indigenous rights regime in the pursuit of opaque objectives."
I understand that other lawyers feel differently. For example, after quoting Isaac and Hoekstra in an email response to supporters on Bill C-262, some writers pointed me to the work of Paul Joffe who specializes in human rights concerning Indigenous peoples. Mr. Joffe strongly disagrees with Isaac and Hoekstra, claiming that they committed a number of errors and omissions in their article. He insists that the article not be relied upon. Honourable senators, this merely illustrates the problem. The impact of Bill C-262 is unclear and uncertain. Even the experts cannot agree on what it will be. I am troubled by the suggestions that we should gloss over this fact and to try to figure it all out later.
Contrary to the assertions made by some, there remain real and significant concerns about the impact of this bill on both Indigenous and non-Indigenous persons. Let me give you one additional example. Dwight Newman, Professor of Law and Canada Research Chair in Indigenous Rights at the University of Saskatchewan, told the House of Commons Standing Committee on Indigenous and Northern Affairs the following:
"...Bill C-262 as presently drafted is framed in ways that have the potential to cause enormously negative unintended consequences. Ultimately, Bill C-262 warrants much more study and careful analysis than what it is receiving."
Honourable senators, I could go on but I think I’ve made my point. There are significant unanswered questions over the impact of this bill, not because of a lack of support for the aspirations of UNDRIP but because of the lack of clarity and agreement on what its implementation could mean to Canada. The part of UNDRIP which best exemplifies this uncertainty and disagreement is found in the articles which mention, “free, prior and informed consent.”
This phrase shows up six times in UNDRIP in Articles 10, 11, 19, 28, 29 and 32. It elicits the greatest concern when it comes to its impact on resource development and public infrastructure projects. What is that impact? Well, that’s the problem. No one seems to know because there is no agreement on whether consent means a veto.
There are supposedly two positions on this question: those who believe free, prior and informed consent grants Indigenous peoples an outright veto, and those who believe it is not a veto. When you drill down, you soon discover it is not quite that simple. There are those who advocate that consent is a veto but believe it should not be a veto. There are those who say it is not a veto but that it should be a veto. There are those who insist that it is a veto and that it should be a veto, so just get over it. And then there are those who say it is clearly not a veto, so what’s the problem?
Let’s not forget those who try to split the issue down the middle, endlessly nuancing the phrase to try to make all sides happy. They suggest that consent is required but insist that it doesn’t constitute a veto even though it has the same effect as a veto.
Colleagues, resolving this issue moving forward to reflect UNDRIP in Canadian law seems rather important. In my view, it is imperative. I find it ironic we are being compelled to codify free, prior and informed consent without having a free, prior and informed understanding of what this even means. And this is not the only issue needing clarification. According to Favel and Coates, the declaration is much more substantial.
According to Favel and Coates, "The declaration is much more substantial than the consent provisions. There is little question that UNDRIP, if implemented in full and as written, could have broad implications for federal, provincial and territorial governments in Canada."
Colleagues, I have barely scratched the surface in outlining the concerns and uncertainties about Bill C-262, and yet there are those who portray that any opposition to this bill is evidence of racism and colonialism. This is not only absurd, it trivializes the important and imperative debate. To pass such a bill without first taking the time to fully understand its implications would be better described as senseless rather than sober second thought.
Colleagues, I support this bill going to committee for in-depth study, but I urge the Standing Senate Committee on Aboriginal Peoples to ensure that the bill is examined carefully and thoroughly. I also ask and expect that the committee will adhere to the agreement that was made between myself and the sponsor of this bill.
Thank you, colleagues.