Romeo Saganash wants to set the record straight on Bill C-15

Three years ago, the House of Commons passed legislation to implement the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). That bill, which I authored, never became law: a small group of Conservative senators were able to delay a final vote long enough to ensure that the bill died on the order paper, contrary to the will of Canada’s elected representatives.

Last week, a new UNDRIP implementation bill was again passed by the House of Commons. Once again, there is only a small window for the Senate to conclude its study and bring the bill to a final vote. In this context, I am deeply concerned by the persistent misrepresentations of Bill C-15 being spread by Conservative-friendly think tanks and media outlets.

In a typical example, the Globe and Mail has now published two editorials (here and here), on Dec. 8, 2020 and May 25, both claiming the Trudeau government is trying to turn UNDRIP into Canadian law without understanding the potential implications. Both editorials rely on a fundamentally flawed premise. The fact is that UNDRIP is already part of Canadian law. The very purpose of implementation is to ensure that the implications of this legal reality are finally addressed and in a clear, consistent and co-operative manner.

Many Canadians take pride in the role Canada has played in promoting human rights on the world stage. I think all of us rightly expect that federal, provincial and territorial governments should respect and uphold these same norms and standards in their own laws and policies.

In fact, in Canadian legal tradition, international human rights standards have real weight in domestic law. Canadian courts and tribunals take Canada’s commitments seriously and regularly use international human rights standards to interpret and apply domestic laws. Critically, this includes UNDRIP.

Since it was adopted by the UN General Assembly in 2007, Canadians courts and tribunals have increasingly turned to UNDRIP to help interpret domestic legislation. In one of the most significant and far-reaching Indigenous rights cases of recent years, the successful challenge to the discriminatory underfunding of family services for First Nations children, the Federal Court, the Federal Court of Appeal and the Canadian Human Rights Tribunal all affirmed the relevance of UNDRIP in interpreting the Canadian Human Rights Act. In fact, the tribunal has made extensive use of the declaration in the series of rulings that it has made on this case.

This is what Bill C-15 means — and explicitly states — when it affirms UNDRIP “as a universal international human rights instrument with application in Canadian law” (emphasis added). The bill will not turn UNDRIP into Canadian law. This is about finally dealing with the reality that the declaration is already part of Canada’s legal landscape.

The Globe’s editorials both refer to Canada’s opposition to UNDRIP while Stephen Harper was prime minister. That opposition did not prevent courts and tribunals using the UN declaration. What this opposition did accomplish was to delay Canada coming to terms with this important legal reality and its human rights obligations.

The Globe and Mail warns that passage of Bill C-15 could lead to confusion and conflict. However, confusion and conflict are exactly what we already have precisely because governments of all political stripes have tried to ignore the rights of Indigenous Peoples. This has forced First Nations, Inuit and Métis to take on long and costly court battles or resort to more confrontational tactics when this door is closed to them.

One of the key provisions of Bill C-15 is the requirement that the federal government work proactively with Indigenous Peoples to identify laws and policies that need to be changed in order to uphold Canada’s human rights obligations. The Globe talks about “upending” existing law. A more accurate — and less inflammatory description — would be “law reform.”

When I drafted a nearly identical provision in my earlier private member’s bill, Bill C-262, I saw such a process as key to creating greater clarity and consistency in federal law and to move away from Canada’s reliance on costly and divisive litigation.

The Globe editorials call C-15 a potential threat to “settled law.” In reality, there is very little that is settled when it comes to Indigenous rights. For decades, successive Conservative and Liberal governments insisted that the constitutional affirmation of Indigenous rights was an “empty box” — that the government had no obligation to respect and uphold rights until those rights had been confirmed and clarified by the courts. Not only has this led to long and costly legal battles, this case-by-case approach has created an incomplete patchwork of law that often goes unimplemented due to lack of political will and accountability.

In making the claim that the implementation could have dangerous, unintended consequences, the Globe’s editors have relied on the same example that other opponents of UNDRIP, from Harper-era government officials to partisan think tanks, have been relying on for years. In both editorials, the Globe points to the declaration’s provisions on Indigenous consent, which the Globe claims represent “an Indigenous veto over natural resource projects.”

As has been pointed out numerous times before, UNDRIP never uses the word veto — and with good reason. The declaration itself is clear that its rights provisions are not absolute, but are subject to balancing based on other rights that may be impacted. The word “veto” — with its implication that the declaration is extreme and Indigenous Peoples unreasonable — makes for a good political talking point, but an inaccurate legal analysis.

Contrary to the Globe’s editorial board, in Canadian law, the power of a legitimate decision-making authority to grant or withhold consent is not, in fact, “the power to say yes or no, full stop.” Decisions by federal, provincial and territorial governments are rightly not described as a “veto” because they are subject to negotiation where jurisdictions overlap and to judicial review when other rights are impacted. This is also the most logical and consistent reading of consent in respect to Indigenous land and resource rights.

The leading Canadian case on Indigenous land title, the 2014 Supreme Court Tsilhqot’in decision, applies the concept of Indigenous consent in just this way. The Tsilhqot’in decision affirms the right of Indigenous Peoples to grant or withhold consent in respect to the lands and resources to which they hold title. This means that the Tsilhqot’in are the primary decision-makers and their decisions cannot simply be pushed aside. The court explicitly warns government and industry this is a reality that they would be wise to respect. However, the court was also clear that such consent is not absolute, but may be subject to balancing and judicial review. In other words, not “full stop” and not a “veto.”

As someone who participated in the negotiation of the UN declaration, as a former Opposition member of Parliament, as the author of the previous private member’s bill on which Bill C-15 is closely based — and as a rights holder — it’s no surprise that I would strongly support this initiative. I don’t expect everyone to agree. However, I do believe that there is an obligation to get the facts right when talking about the bill and the current state of Canadian law.

Critics of Bill C-15 who are concerned about “muddying the waters” — the Globe’s words — should take responsibility not to spread the very confusion they are warning against. Unless, of course, their real purpose is to create a smoke of Conservative senators to once again defy the will of Canada’s elected representatives.

A shorter version of this opinion piece was submitted to the Globe and Mail in rebuttal of the errors contained in its two editorials. The Globe would only agree to publish a short letter to the editor.

Romeo Saganash is a former NDP MP for the Quebec riding of Abitibi—Baie-James—Nunavik—Eeyou. His Bill C-262, which provided for the implementation of UNDRIP, is the basis for the current Bill C-15 now being debated in the Senate.