Mr. Speaker, I am pleased to have this opportunity to rise today to speak to Bill C-262 at third reading. Again, I want to acknowledge the tremendous effort of the member for Abitibi—Baie-James—Nunavik—Eeyou in bringing forward the bill and the important discussion it has generated around the UN Declaration on the Rights of Indigenous Peoples.

During second reading debate, we presented a number of very specific and practical concerns. Unfortunately, in spite of further analysis at committee and detailed testimony, I continue to have reservations about the implications of enacting Bill C-262. It needs to be said first and foremost that our not supporting the bill does not mean we do not recognize the UN declaration as an incredibly important document for Canada. We recognize that it is going to require an effort from whoever is in government to live up to the standards it has set for all of us. However, we do also need to ensure that our support or non-support for any individual piece of legislation is based on a reasonable examination of the potential implications of the bill

Lawyers from Cassels Brock noted:

UNDRIP is a blunt instrument, developed in an international setting, that is not reflective of Canada’s world-leading legal protections for Indigenous rights; Canada is the only nation with an established system for limiting unilateral state action against Indigenous peoples. By simply adopting UNDRIP in its entirety into the Canadian context, Bill C-262 misconstrues Canada’s existing and sophisticated Indigenous rights regime and, by adding new uncertainties, risks hindering the pursuit of reconciliation.

They went on to say:

While UNDRIP reflects critical elements of Indigenous rights through a lens of human rights, it was designed as a global benchmark and guide, rather than a specific legal instrument to be directly implemented as law. The fact that UNDRIP is a declaration and not a convention makes this clear. Conventions are binding agreements intended to be a reflection of international law and to be incorporated into national laws. Declarations, in contrast, are statements of generally agreed-upon standards which are not themselves legally binding.

Their concerns are not inconsistent with the comments by the justice minister in 2016, when she said:

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 back home in communities.

Clearly, she has changed her mind, but has given no explanation how something that was previously unworkable and a distraction is suddenly workable. To be frank, when the Justice officials came before us at committee, they really did not offer any further clarity as to how those comments align with the current government position.

The following areas are some of the concerns that are unresolved and, unfortunately, time is only going to allow me to highlight a few.

As noted by one witness, there seem to be three main interpretations of what free, prior, and informed consent means. To be frank, this was consistent with other testimony at committee, because when we asked people what it means, we were given a number of different definitions. One of the ways they described it was that it is not enough to seek free, prior, and informed consent, but enough that you try without actually obtaining it. I might suggest that the Kinder Morgan is a good example of where the government tried to get free, prior, and informed consent, but did not obtain it and moved ahead anyway.

A second interpretation states that it is “really about the type of process required and that it's possible to move away from talking about consent as long as one has the right type of consensus-oriented process.” I guess that is the free, prior, and informed, but no consent, model.

Finally there are many, especially among the first nation communities, who feel it is grounding rights in something analogous to vetoes, or the right to say yes and the right to say no. That has been heard time and time again by many communities. Certainly, Pam Palmater expressed very clearly in what alternate universe does consent not mean the right to say yes, the right to say no, or potentially veto.

I would suggest that prior to moving forward with a piece of legislation like this, the government needs to make sure that it has an agreed upon interpretation of FPIC with indigenous people so that we do not have the confusion that is out there right now. Again, I can use the Kinder Morgan example, where there are many communities saying that they have not given free, prior, and informed consent, and that the government is going forward anyway and not being consistent with the declaration. Not having that understanding will lead to certain problems down the road.

It was indicated by the proponent of the bill that FPIC, and again we are looking at a multi-jurisdictional project going over much traditional territory, means free, prior, and informed consent from every community that would be impacted. That is absolutely going to be a challenge down the road.

Article 19 of UNDRIP speaks of the need for FPIC for all laws of general application. In a country such as Canada, how would it be feasible to consult and try to obtain consent from Métis, Inuit, and all first nations for essentially every bill tabled in Parliament? Clearly, almost every bill tabled in Parliament has an impact under article 19. I am concerned that this would lead to paralysis and an inability by government to move forward on its agenda and commitment.

Marie-Claude Landry, chief commissioner of the Canadian Human Rights Commission, identified the very important question of who would have access to these rights if this legislation is passed. With the recent Daniels and Descheneaux decisions and the ongoing Bill S-3 consultations, the issue of indigenous identity is increasingly complex and must be resolved.

In addition, Dwight Newman, professor of law and Canada research chair in indigenous rights, identified a number of drafting concerns and internal inconsistencies that would create significant challenges if Bill C-262 were adopted. This leads me back to second reading debate and one of my original suggestions based on the point made by witnesses that this is a quasi-constitutional piece of legislation. Certainly, I think everyone in this House should agree that a quasi-constitutional piece of legislation deserves the scrutiny a government bill would generate, a government bill that we would get to question the minister about its nuances, and that we would have a much more robust opportunity to have debate and back-and-forth on, as opposed to a very constrained debate.

Accordingly, we not only have important unanswered questions, but also legitimate drafting concerns that were expressed during committee hearings. That said, I want to acknowledge that this bill is incredibly important. It is also symbolic, as we have heard tonight, and some have identified it as an absolutely essential component of reconciliation.

For others who have expressed concerns, they have attempted to engage in a nuanced and serious discussion, but have certainly been met with condemnation. The following are just a few examples. One witness suggested that any objections to voting for this bill were simply based on a colonialist attitude of the people who would not vote for it. A Liberal member said privately that if someone did not support this bill, they were just racist. I found that incredibly insulting.

A number of witnesses were unwilling to testify, feeling that any concerns expressed would simply be construed as being unsupportive of reconciliation. When debate is constrained, so is democracy. The debate among citizens and with political leaders is crucial to building consensus. I do not think we want this place to always be an echo chamber if we really have significant concerns about what a bill would do.

I want to note that in May 2016, the Minister of Crown-Indigenous Relations stated at the UN that the government fully intended to adopt and work to implement the United Nations Declaration on the Rights of Indigenous People. However, as my question indicated earlier, I would suggest there are many examples of where the government has not actually stood up to that standard.

In conclusion, international declarations are important to guide legislation and policy, but must be interpreted in the context of a country's existing legal framework, as opposed to adapting laws to the blunt instrument of a generic declaration. The real work of reconciliation is going to happen, of course, in our communities where we live, work, and play. We do, I believe, have the will and the momentum.

Thus, in spite of the fact that we will not support Bill C-262, we do support and are committed to moving forward with reconciliation.

Cathy McLeod

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