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“The government is rolling the dice” with Bill C-15: Senator Plett’s Third Reading Speech

June 15, 2021 (Ottawa, ON) - The Honourable Don Plett, Leader of the Opposition in the Senate, issued the following statement:

Honourable senators, I rise today to speak to Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples. I want to start my speech by outlining that the Truth and Reconciliation Commission in its Call to Action No. 53 asked for the creation of a national council for reconciliation.

Part of the mandate of the council would be to promote public dialogue on reconciliation. Now, I stress the word “dialogue.” Throughout its report, the TRC calls for respect — respect and dialogue. I agree 100% with that. Reconciliation will be a long journey, and it may be painful at times. But it will be a lot more painful for all of us if we do not have both of those elements: dialogue and respect. Questioning the path to reconciliation as proposed by the government or other individuals and organizations should not be accompanied by accusations of racism.

Colleagues, I want to reflect on something: Is the cause of reconciliation better served by accusations against anyone who happens to disagree with the echo chamber, or is reconciliation actually furthered by dialogue and respect?

I believe that Senator McCallum accepts and understands that time is required to build true dialogue and respect. She did not succumb to the government’s demand that this bill be passed immediately and without amendment. There has been absolutely no need to rush this bill just to end up with an imperfect result in the process.

In fact, when I listened to Senator McCallum, I believe that she understood that a rushed, bad bill is far worse than a more thoughtful bill where the implications of specific legislative provisions are clearly understood.

We may disagree on what constitutes the best bill for Canada when it comes to the implementation of the United Nations declaration. But I do believe that we agree that we should understand the full implications of what we are doing when we pass legislation.

Colleagues, two years ago, the Conservative caucus fought tooth and nail against Bill C-262, a private member’s bill that was similar in nature to Bill C-15. The main reason for our opposition was that we thought such a bill should be presented by the government and that ministers and officials should have to testify in committee about the impact of such a bill. Liberal ministers and officials, colleagues, refused an invitation to testify on Bill C-262, leaving senators in the dark about the potential impact of the bill. Forcing the government to table its own bill had the advantage of at least trying to force ministers and officials to clarify their interpretation of the bill and its impacts. The government’s intent is particularly important in relation to Bill C-15.

I recognize this bill has taken on symbolic importance for many people, particularly within our Indigenous communities. I believe that very sincere people see this bill as providing new hope for reconciliation with our Indigenous peoples. Their position is entirely understandable.

However, I fear that their hopes may not be realized. I know that many people want this bill to usher in a new era for Indigenous people and for reconciliation in Canada. But when we look at what witnesses who appeared before the Standing Senate Committee on Aboriginal Peoples said, I fear that this is probably unlikely to be the case. Now that the government has been forced to describe the real impact of the bill, we can see it for what it is. At best, it constitutes a list of aspirations that will create disappointment and frustration. At worst, it is a list that indicates where future areas of conflict are likely to arise.

Furthermore, when we look at what the majority of provinces have told the Prime Minister directly, expectations that the government has created with this bill seem unlikely to be realized.

The government, of course, has a different position. We have heard government ministers loudly proclaiming that this bill will usher in a new era of reconciliation and cooperation with Indigenous people. In that regard, I want to read some of the comments that Minister Lametti made on the bill at second reading in the other place. The minister described the bill as part of:

. . . broader work to make progress together on our shared priorities for upholding human rights, affirming self-determination, closing socio-economic gaps, combatting discrimination and eliminating systemic barriers facing first nations, Inuit and Métis peoples.

Those are extremely broad objectives. But, of course, the minister went further in saying that the bill also acknowledges:

. . . the importance of the declaration as a framework for reconciliation, healing and peace; recognizing inherent rights; acknowledging the importance of respecting treaties and agreements; and emphasizing the need to take diversity across and among indigenous peoples into account in implementing the legislation.

And that:

By mandating a collaborative process for developing a concrete action plan on these and other human rights priorities, we should see an improvement in trust and a decrease in recourse to the courts to resolve disputes over the rights of indigenous peoples.

These are very broad and far-reaching objectives coming from a government that spent nearly $100 million fighting First Nations in court from 2015 to 2018. Just based on that reality, there is a profound disconnect with what the government is proclaiming versus what it is actually doing. Based on that, it is probably understandable that we have to question the sincerity of the minister’s words.

Then there is the matter of the government’s consultation record in relation to this bill and, quite frankly, other bills. The minister has claimed that the government has consulted broadly on this bill. This is pivotal since future consultation and collaboration is obviously a key pillar to Bill C-15’s proposed action plan. On that basis, we should expect that adequate consultation would be a key pillar of the process leading to the bill itself.

The minister naturally claimed that consultation on the bill was extensive. He specifically said that the bill:

. . . was the result of our collaboration and consultation over the last several months with indigenous rights holders, leaders and organizations. . . .

He said that the government, “. . . worked closely with the Assembly of First Nations, Inuit Tapiriit Kanatami and the Métis National Council.”

He also said:

We also received valuable input from modern treaty and self-governing nations, rights holders, indigenous youth, and regional and national indigenous organizations, including organizations representing indigenous women, two-spirit and gender-diverse people.

All of this feedback helped shape this proposed legislation, and we thank everyone who participated. We also held talks with the provincial and territorial governments, as well as with stakeholders from the natural resources sector.

But here is the problem, colleagues: What our Aboriginal Peoples Committee heard from witnesses in relation to consultations is inconsistent with what the government itself has claimed. For one, our committee heard that, in fact, most rights holders have not been consulted with on this bill. In Western Canada, witnesses from Treaties 6, 7 and 8 all referenced insufficient consultations on this bill, insufficient federal respect for rights holders and for bilateral treaty relationships.

The Association of Iroquois and Allied Indians argued that there was no proper consultation with rights holders in Ontario on this bill. Douglas Beaverbones, Chief of the O’Chiese First Nation, said the following:

The symbolism of the C-15 legislation does not provide us with the assurance that the rights and entitlements inherent in the treaty relationship will be fully recognized.

He went on to say:

Bill C-15 will create yet more tables, more process, and even more distance from the Crown and our people. This means it will be meaningless at the . . . grassroots level.

Canada must understand that the Assembly of First Nations is not a treaty rights holder. The people in my nation are. Free, prior and informed consent from them is the UNDRIP standard, not Perry Bellegarde. No one has asked my people for their free, prior and informed consent for the proposed legislation.

The sponsor of this bill here in the Senate often, very loudly and proudly, proclaims that she comes from Treaty 6 territory. This is what the Confederacy of Treaty Six First Nations says in relation to the consultations:

It is clear to the Confederacy of Treaty Six First Nations that Canada failed on all fronts with respect to this definition of Free, Prior, and informed Consent provisions of UNDRIP. The government of Canada did not meet any of the criteria of FPIC. Not even a minimum standard.

In her remarks on this bill at third reading, Senator LaBoucane-Benson provided a long list of Indigenous people who supported the government’s bill. But what about all the rights holders who do not support the bill? What is the value of their free, prior and informed consent? Why does it seem that only the free, prior and informed consent of those who agree with the government truly matters?

The reality is that a large number of rights holders spoke to our committee about the inadequate consultations, and senators from all groups have actually acknowledged that this is a serious problem.

For instance, Senator Coyle — I want to give her full credit — told Minister Lametti and Minister Bennett this when they appeared at committee on the final day that witnesses were heard. She said:

We have heard a lot of positive feedback over the last few intense days of testimony for Bill C-15. . . .

That doesn’t mean, however, that we don’t need to pay a lot of attention to those who have real concerns. We have heard concerns from rights bearers about treaty rights but also about the whole consultation process. We’ve heard about a lot of mistrust.

We have heard from the resources sector about their concerns about this bill exacerbating the already difficult environment, lack of clarity, et cetera, for the resources sector. . . .

So I think every senator who sits on our Aboriginal Peoples Committee will likely have to acknowledge that there are some grave doubts about whether Bill C-15 will actually usher in the new era of reconciliation and consultation that the government is claiming it will.

If we were to summarize, the government, in essence, claimed several things in relation to this bill. First, it has claimed that the bill will usher in a new era of reconciliation; second, it is claimed that there will be more certainty and less litigation on Indigenous issues; third, it asserts that the government consulted widely, including with rights holders, with industry and with the provinces.

What about those consultations with the provinces? What about the views of people from Canada’s resource sector and First Nations working in tandem with our resource sector? What are their perspectives?

We do know that one province, British Columbia, is supportive. But Arlene Dunn, the Minister of Aboriginal Affairs from the Province of New Brunswick, appeared before our committee on this bill, and she quite clearly acknowledged:

That Indigenous peoples have rights in Canada, both individually and collectively, is not in dispute. Section 35 of the Constitution of Canada explicitly recognizes and affirms existing Aboriginal rights as well as treaty rights. . . .

No one disagrees with that. But with specific reference to Bill C-15, the minister also said the following:

But Bill C-15 would, in our view, create new rights not contemplated in our Constitution, which would be detrimental to the long-term growth and prosperity of Canada. Our concern is that this legislation would create an absolute veto on economic development for one group without consideration to the interest of other members of Canadian society.

That is the analysis the Government of New Brunswick provided to our committee. It may not be everybody’s view, but we have a duty to not simply ignore it. It is, after all, our job, under the Constitution, to exercise sober second thought. Those are not simply nice-sounding words. I believe we have a duty to actually act on them from time to time.

The larger problem is that the views of New Brunswick are, in fact, widely shared among most provinces. In fact, six provinces — Alberta, Ontario, Quebec, Saskatchewan, Manitoba and New Brunswick — have written to the Prime Minister expressing their concerns over Bill C-15. These are provinces that the government widely consulted with. In their letter to the Prime Minister, these premiers stated:

We feel that the federal government has not properly addressed our concerns nor adequately engaged with us —

— Interesting —

— or Indigenous communities and organizations regarding this legislation. Each of our provinces has taken positive steps to advance reconciliation and prosperity with Indigenous peoples in our respective jurisdictions. To date, your approach on the passage of Bill C-15 is contrary to the principles of cooperative federalism, which require meaningful and substantive engagement with the provinces. Engagement on this draft legislation has been insufficient and unresponsive to provincial concerns. . . . Bill C-15, as drafted, is problematic and will have significant and far-reaching consequences for both the federal government and the provinces and, potentially, Indigenous populations.

The letter from the six premiers argued that Bill C-15 risks replacing the known framework of current jurisprudence with “decades of further legal uncertainty, threatening investments and further progress on reconciliation.”

We need to take this very seriously. To repeat the phrase used in the premiers’ letter, it is “decades of legal uncertainty.”

Honourable senators, who will pay the price for that? Certainly not lawyers like Minister Lametti, not well-funded national Aboriginal organizations and not the academics in our universities and in the Senate of Canada who support this bill. No. Likely, the first to pay the price will be ordinary Canadians, including Indigenous Canadians, who depend on project certainty for their jobs and their livelihoods.

What premiers have warned the Prime Minister is all the more worrying because the warning was repeated at committee by witnesses representing Canada’s resource sector.

Brian Schmidt is the President and Chief Executive Officer of Tamarack Valley Energy. When he appeared before committee, he stated that the resource industry and Indigenous people have the same interests when it comes to responsible development. He said development is the foundation of prosperity for Indigenous peoples.

This was confirmed by Dale Swampy, who is from the Samson Cree Nation in Alberta and President of the National Coalition of Chiefs. Mr. Swampy said:

. . . the Indigenous community in Canada is experiencing a crisis in poverty. Poverty has destroyed most of our family structure, a structure that has made us a proud community. The loss of our family structure has made us reliant on a social welfare society. . . .

The NCC believes that poverty within our community has created these social ills, and the only way to cure these ills is to defeat poverty. . . . The best way to get employment is through our largest industry in Canada, our natural resource industry. . . .

I know there are senators in this chamber who may be under the illusion that we can do without our resource sector. However, the reality is that this sector accounts for 10% of Canada’s GDP and directly employs nearly 300,000 people. Indirectly, the sector supports more than half a million Canadian jobs. Many of these workers come from Canada’s Indigenous communities.

This sector is not going anywhere. Royalties and taxes from this sector sustain our social programs. The last thing we should be doing as a country is to possibly create more uncertainty for the sector. Yet, according to witness testimony, this is precisely what Bill C-15 may do.

This is what Brian Schmidt further said:

. . . Bill C-15 as proposed will create more uncertainty for our industry and for resource development as a whole in Canada. This will mean that we cannot attract investment from the capital markets and that good projects worth billions of dollars will not proceed. . . .

When every industry association — hydro, mining, electricity, forestry, as well as petroleum — tells you that a piece of legislation is going to have negative implications for investment, at least listen to our concerns.

Mr. Schmidt echoed the call from the six provinces that reasonable amendments would clear up this uncertainty. Yet, the government refuses to accept any such amendments even though Minister Lametti has himself claimed that there is no intent on the part of the federal government to overturn existing jurisprudence around the duty to consult and accommodate.

At the Standing Senate Committee on Aboriginal Peoples, very reasonable amendments proposed by my colleague Senator Patterson were again rejected by the majority of the government-appointed committee members. This failure to provide clarity carries a serious risk. The risk is for the resource sector, for Indigenous communities who depend on the resource sector and for Canada as a whole.

Shannon Joseph, Vice President of Government Relations and Indigenous Affairs of the Canadian Association of Petroleum Producers, also appeared before our committee. She, too, was quite clear on what the consequences could be. She said:

We support the goal of facilitating and expanding Indigenous involvement and resource development as part of economic reconciliation. But legislation that is ambiguous will make this participation more difficult, and it will lead investors to move their capital to environments that enable all parties to understand their obligations and how to fulfill them adequately and in a timely manner.

Why on earth would any of us want to risk such an outcome? I believe that if we allow this bill to go through as is, we will have failed our core responsibility as senators. As senators, we have a clear obligation to speak for minorities as well as for our regions and our provinces, colleagues. I submit that if there was ever a time for sober second thought, instead of just blind ideological compliance, it is on this bill.

What I fear, and what I think the evidence shows, is that the government is rolling the dice with this bill.

Government officials privately told our party’s critic of this bill, Senator Patterson, that the bill means nothing — that it only obligates the government to produce an action plan and this does not even require the consent of Indigenous people to finalize that plan. Perhaps those officials are correct. If those officials are correct, then the statements that the government ministers have made will simply raise expectations only to see them dashed.

Imagine the consequences that will flow from the disappointment generated when the government consults on the action plan in exactly the same way it has consulted on this bill. Imagine the reaction if it actually attempts to finalize the action plan without securing the consent of rights holders. I think we all know that such an outcome is extremely likely, given the way in which the government consulted on the bill itself.

Does anyone seriously believe that this government will now suddenly consult broadly with rights holders and will finalize an action plan in only two years — that it will meet the expectations of those rights holders?

It did not do that on this bill. It did not do that even on a very focused issue like the Missing and Murdered Indigenous Women and Girls action plan. It is, to say the least, wishful thinking that it will now suddenly occur in relation to the action plan called for in this bill.

On the other hand, what happens if the concerns raised by the rights holders before our committee, and the concerns expressed by our provinces that wrote to the Prime Minister, turn out to be right? What if prolonged uncertainty, litigation and loss of investment result from this bill? In that case, Indigenous communities who depend on development will be the first to suffer the consequences. How is such an outcome in anyone’s interests, let alone in the interests of ordinary Indigenous people?

Colleagues, the consultations on this bill have clearly been inadequate. There is no question that there is considerable uncertainty around various components of this bill. A majority of the provinces are opposed to it. Many rights holders have not provided their consent to a bill that ironically emphasizes free, prior and informed consent.

Colleagues, for these reasons, I believe this bill should be rejected. Given the consequences of proceeding, I urge all other senators to reject it as well.

We need to tell the government to start over and this time to actually proceed in a collaborative, responsible and inclusive fashion. I fully recognize that renewed discussions would be far from easy, but they might at least start from a position of openness, honesty, dialogue and respect.

I think it might be appropriate, colleagues, if on this legislation I close for the first time with thank you and meegwetch.

Senator Plett's speech can also be found here.

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