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UNDRIP legislation ‘a framework for reconciliation’: Sen. Harder

Legislation in support of the United Nations Declaration on the Rights of Indigenous Peoples was introduced by NDP MP Romeo Saganash.

Senator Peter Harder detailed his support of Bill C-262, legislation to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, during a speech in the Senate in February 2019. He noted that the Government supports the bill.

He also commended NDP MP Romeo Saganash, who introduced the legislation in the House of Commons, as well as Senator Murray Sinclair, who is sponsoring the legislation in the Senate.

“The speeches and work of both have contributed significantly to our collective understanding,” Sen. Harder said.

“Bill C-262 is about respect for our Indigenous partners and a framework for reconciliation. It brings into clear focus the path ahead. Additionally, the study of UNDRIP will be an opportunity for us as senators to continue to play a leadership role in protecting Indigenous rights and interests. Together, we can build upon this chamber’s groundbreaking policy work in this Parliament regarding historic gender discrimination in the Indian Act, as well as aspects of the cannabis legislation specific to Indigenous communities.

For members of the public who have followed UNDRIP but might be less familiar with the Senate, this institution is charged with defending constitutional values, including treaty and inherent Aboriginal rights contained in section 35 of the Charter of Rights and Freedoms. With this duty in mind, I believe senators appreciate Bill C-262’s importance, and our institutional role will inform our study and our decisions.

Over history, the Senate participated in enacting deeply unjust policies with regard to Indigenous peoples. We bear institutional responsibilities to help right those wrongs and to work to set Canada on a better path. Our grandchildren can grow up in a better world if we build toward that end.

As a consideration on process, I would note that senators can expect this spring to study two major pieces of government legislation with regards to Indigenous rights and interests. Those are Bill C-91, being debated in the other chamber, regarding Indigenous languages, and a critically important bill in relation to child and family services.

As we think about organizing the Senate’s legislative agenda to complete our work in this Parliament, we would do well to collectively and transparently plan our schedule, affording Canadians greater opportunity to follow and contribute to the work we are doing on their behalf.

With this in mind, I’m of the view that we should afford the Aboriginal Peoples Committee maximum flexibility to schedule its hearings on government legislation as well as Bill C-262, as I anticipate the committee chair, Senator Lillian Dyck, will provide us with guidance on the best path forward as we look to facilitate and support the committee’s great work.

Before delving into the UNDRIP, I would make one more quick aside on process. This is just to add that I hope the Aboriginal Peoples Committee will also have a chance to expeditiously study Bill C-374, still at second reading. That private member’s bill also reflects the Truth and Reconciliation Commission’s call for action on guaranteeing Indigenous representation on the Historic Sites and Monuments Board, a body that recommends which historic places, persons and events should receive official designation and why.

I believe that this bill is an opportunity for the Senate to do its part to defend section 35’s constitutional values to help right historic injustice in Canada and to achieve further reconciliation with our Indigenous partners. This is also an opportunity to build on this chamber’s excellent work to eliminate historic gender discrimination in the Indian Act, as well as in relation to cannabis legislation for Indigenous communities.

In regard to process, I support scheduling our legislative agenda generally and particularly on several pieces of legislation that will advance Indigenous rights and interests. This is so that Canadians can follow and contribute to our work. Again, this would include our studies on the government’s Bill C-91, the Indigenous Languages Bill, and the forthcoming Family and Child Services Bill.

In that regard, we look forward to the guidance of Senator Dyck, the chair of the Aboriginal Peoples Committee, on the best path forward in consideration of all of these pieces of legislation.

I also hope that we can move swiftly forward with private member’s Bill C-374 to guarantee Indigenous representation on the Historic Sites and Monuments Board of Canada. That bill was passed in the other place unanimously and is only the third private member’s bill ever to have received a Royal Recommendation authorizing expenditures. So we should move swiftly to review and, hopefully, complete our passage of Bill C-374.

Turning to UNDRIP, as you know, Bill C-262 calls for the harmonization of Canada’s laws with the United Nations Declaration on the Rights of Indigenous Peoples and calls for the standards and principles of the UN declaration to serve as a framework for reconciliation. In doing so, Bill C-262 advances Call to Action 43 of the Truth and Reconciliation Commission.

The United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples over 10 years ago, in 2007. On the day of its adoption, the chair of the UN Permanent Forum on Indigenous Issues urged everyone to make the declaration:

. . . a living document for the common future of humanity.

The declaration is the only international instrument focused on Indigenous rights that has received global support. It is the result of more than 20 years of negotiations involving both Indigenous peoples and states, and Senator Boehm in his intervention described some of those negotiations, of which he was a party.

Bill C-262 today is part of a broader conversation about national reconciliation, the recognition and implementation of Indigenous rights and the rebuilding of a strong and healthy relationship between the Crown and Indigenous peoples based on respect, cooperation and partnership.

Bill C-262 reflects the desire of many Indigenous and non-Indigenous people in Canada to pursue reconciliation efforts, including the rebuilding of Indigenous nations through lasting, tangible and meaningful change.

Although reconciliation has been a core principle of section 35 of the charter for many decades, there is still much work to do to live up to its promise and for true reconciliation to be achieved.

I note that the UN declaration, like other international human rights instruments that Canada supports, already applies to Canadian law as a source that can be drawn upon to inform the interpretation of domestic law. With Bill C-262, we introduce legislative measures that further support the implementation of the UN declaration in Canada in ways that ensure increasingly better outcomes for Indigenous communities and moves reconciliation forward. Bill C-262 would require the Government of Canada to take all measures necessary to ensure consistency between federal laws and the UN declaration.

However, the bill provides flexibility for the government to determine, in consultation and cooperation with Indigenous peoples, what measures will be necessary to align federal laws with the declaration within Canada’s constitutional framework. This approach is consistent with the declaration itself, which specifies that it is up to individual states to determine what measures are appropriate to achieve the ends of the declaration:

. . . in consultation with and cooperation with Indigenous peoples . . .

For Canada, it means that this work needs to take place in full partnership with First Nations, Metis and Inuit peoples.

Bill C-262 also provides accountability mechanisms for the federal government, including a requirement to develop and implement a national action plan in partnership with Indigenous peoples and the obligation to report on progress to Parliament annually on both the harmonization of laws and the national action plan.

Through these key mechanisms, the government’s progress on implementing the declaration will be monitored and measured over time.

Like other laws, once Bill S-262 is passed, it will be interpreted in a way that respects the Canadian Constitution, including section 35 of the Constitution Act and the division of powers. I want to point out that Bill S-262 specifically mentions that it should not be interpreted or enforced in such a way as to reduce the constitutional protection afforded by section 35.

Cooperative federalism also means that the implementation of an instrument as important as the United Nations Declaration on the rights of Indigenous Peoples cannot be done by the federal government alone. It requires the collaboration of the provinces and territories. This is a national project that requires the engagement of all governments and all Canadians.

Now I would like to briefly address some of the issues that were raised during the study of Bill C-262 in the House of Commons which may also be raised here.

First, there is quite a bit of discussion around the meaning of the principle of free, prior and informed consent, or commonly referred to as FPIC, which appears in different articles of the declaration. The larger objective of FPIC is that all parties work together in good faith towards mutually acceptable arrangements with Indigenous peoples genuinely influencing decision-making.

Here in Canada, consultation and cooperation with Indigenous peoples would require to develop Canada’s approach to FPIC within our legal framework and consistent with the UN declaration as well as Bill C-262’s requirements. For instance, new processes, structures and mechanisms for participation and engagement in decision making could be required. Such structures would need to be developed in full partnership with Indigenous peoples.

In conversation with Senator Scott Tannas, Deputy Chair of the Senate Aboriginal Peoples Committee, Senator Sinclair discussed FPIC as a meaningful process of accommodation. FPIC is something for committee members to take a closer look at and to report back to us their findings.

Another issue that was discussed during study of the bill at the other place was the characterization of Indigenous rights as human rights. Honourable colleagues, there is no doubt that Indigenous rights are human rights and that these rights are defined individually or collectively by individuals or Indigenous groups.

Human rights are universal and inherent in all human beings. They represent a consensus of shared values that crosses faiths and cultures. Article 1 of the UN declaration recognizes that Indigenous peoples have the right to full enjoyment of all human rights and fundamental freedoms. This includes the right to self-determination and self-government, which are core elements of the UN declaration.

Turning the tide and shifting our laws, policies and operational practices to require the rights of Indigenous peoples will require a range of measures as set out in Article 38 of the UN declaration. These include legislative measures like those in Bill C-262.

Honourable senators, we are working towards a longer-term transformation that includes a vision of healthy, prosperous, self-determining and self-governing Indigenous nations. Bill C-262, by requiring consistency between the laws of Canada and the UN declaration, provides further conceptual foundation for this vision. It is this foundation upon which we will accelerate progress towards reconciliation.

With this goal in mind, I was inspired by a recent comment about UNDRIP at our Fisheries Committee meetings on Bill C-55, where John G. Paul, Executive Director of the Atlantic Policy of First Nations Chiefs Secretariat, said the following about the importance of UNDRIP to Indigenous communities:

Even when UNDRIP was declared years ago, it was really us that were proud that the United Nations declared it. This is providing a real opportunity for Canada to be proud of us and our perceptions under UNDRIP which we’ve also believed.

Honourable senators, I think this is great way to look at UNDRIP and this bill, as an achievement of Indigenous leaders and partners about which we can all be proud.

Finally, in closing, I would like to acknowledge on the record the determined grassroots work of faith communities in support of this bill, including my Mennonite faith. I would like to read an excerpt of a letter sent by the leaders of the Anglican Church of Canada, the Canadian Baptists of Western Canada, the Quakers, the Christian Reformed Church, the Evangelical Lutheran Church, the Canadian Ecumenical Justice Initiatives, the Mennonite Church of Canada, the Mennonite Central Committee, the Presbyterian Church in Canada and the United Church in Canada. I want to quote just briefly from that letter, where it says:

‘We are at a critical juncture in Canadian history. In 2010, the Federal government, led by Prime Minister Stephen Harper, issued a statement of support endorsing the principles of the Declaration. In 2016, the Federal government, led by Prime Minister Justin Trudeau, stated that Canada is “a full supporter of the Declaration, without qualification.” Now is our chance to breathe life into these public affirmations with tangible action. Together, we can make a non-partisan decision in support of legislative reconciliation.’

The letter goes on to say:

‘Indigenous peoples are calling Canada to a path of mutual and authentic relationship. Non-Indigenous Canadians of all ages and backgrounds are asking the Federal government to honour Indigenous peoples’ human rights.

The Senate holds decision-making power to bring Canada closer to honest and fair relationship.’

The letter closes in saying:

‘Please support Bill C-262.

Our prayers and hopes are with you.’

Honourable senators, faith gives many Canadians the hope and the will to work toward a more just world. As we are working to make a positive difference in Canadian society through this democratic institution, I’d like to close by sharing a quote from one of my favourite theologians, Reinhold Niebuhr, where he says:

‘Man’s capacity for justice makes democracy possible; but man’s inclination to injustice makes democracy necessary.’

Colleagues, let us trust in our democratic processes. Let us see whether the Senate endorses the proposition that our laws ought to be in harmony with the United Nations Declaration on the Rights of Indigenous Peoples. I believe that this chamber will if it’s given the chance.”

UNDRIP legislation ‘a framework for reconciliation’: Sen. Harder