Hon. Donald Neil Plett (Leader of the Opposition): Honourable senators, I rise today to speak to third reading of Bill S-13.

As you know, Bill S-13 will amend the Interpretation Act to include a non-derogation clause on upholding the Aboriginal and treaty rights found in section 35 of the Constitution Act, 1982.

That clause will read as follows:

Every enactment is to be construed as upholding the Aboriginal and treaty rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.

Abrogation refers to the formal repeal or abolition of a law, agreement or order. It signifies the act of formally and officially revoking or nullifying an existing law, treaty, legal right or another formal enactment.

Derogation is the partial suppression or relaxation of a law, rule or agreement. It often refers to the act of deviating from a standard or norm, typically in a legal context where certain aspects of a law or regulation are suspended or modified without completely eliminating the law itself. You can easily see why either of these are very detrimental in the context of the rights of Indigenous peoples.

What is perhaps less clear is why such a non-derogation clause is even necessary. Allow me to give you a bit of background on how we got to where we are today. To do so, I’d like to quote a few paragraphs from a 2013 article entitled “The Campaign to Erode Aboriginal and Treaty Rights,” which was signed by 52 professors, constitutional experts and Indigenous leaders, including Willie Littlechild and Constance Backhouse:

Up until 1995, new federal laws that might have the potential to conflict with Aboriginal and Treaty rights routinely included a ‘non-derogation’ provision; a provision confirming that Parliament did not intend the new law to be interpreted in a way that would conflict with Aboriginal and Treaty rights. . . .

Starting in 1995, the federal Department of Justice has worked, first, to chip away at, and, then more recently, to undermine directly this constitutional balancing act. It has done so without bringing the matter clearly to the attention of Parliament, or Aboriginal peoples, or the Canadian public.

The article goes on to say:

In laws drafted since 1995, the Department of Justice has experimented with replacing the clear non-derogation language with many weaker variations. All those variations have trended towards a blurring, weakening, and, eventually, overturning, of Parliament’s previously clear presumptive intention not to diminish Aboriginal and Treaty rights in new legislative projects.

For quite some time, this campaign went undetected. When spotted by Aboriginal representatives, and brought to the attention of Parliamentarians, the Senate Standing Committee on Legislative and Constitutional Affairs carried out a careful and thorough investigation of the matter. The investigation resulted in a thoughtful report in December 2007, supported across party lines, entitled Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and Treaty rights.

Among the sensible recommendations of that report, the Senate Committee urged that the federal Interpretation Act be amended to include a general presumptive rule that new laws be interpreted to uphold rather than erode Aboriginal and Treaty rights. . . .

Colleagues, this is the unvarnished backstory to the legislation that lies before us today.

Bill S-13 is not a bill to be celebrated but rather a silent testimony to the repeated and systematic, systemic failure of Canadian governments to honour Aboriginal and treaty rights. This is sobering, colleagues. First we had the treaties; then the treaties were followed by court decisions that insisted those treaty rights must be honoured; then came section 35 of the Constitution Act, 1982, which affirmed that treaty rights are actual rights and must be respected. Following that, Parliament adopted the United Nations Declaration on the Rights of Indigenous Peoples Act, which requires that:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Yet despite all of this, colleagues, we are now passing Bill S-13, which will once again affirm the rights of Indigenous peoples, even while the government simultaneously ignores Indigenous concerns about the bill.

These concerns were repeated over and over by Indigenous witnesses at the committee hearings on Bill S-13.

Natan Obed of Inuit Tapiriit Kanatami, or ITK — by the time we’re done here colleagues, I will have learned how to pronounce that, I think; I’ve done it a number of times — said:

. . . ITK has serious concerns about how the process for developing this legislation is being portrayed. The legislation was neither co-developed with Inuit nor was it subjected to any consultation and cooperation with Inuit . . . .

The Native Women’s Association of Canada, or NWAC, said this:

Specific to this bill and to an NDC in the Interpretation Act, NWAC submitted at least four written submissions between 2021 and 2023, very clearly emphasizing that NWAC expects UNDRIP to be included in the non-derogation clause.

. . . we have been consulted, but they haven’t responded to what we have been asking — repeatedly.

Cheryl Casimer, who is an elected Political Executive of the First Nations Summit Task Group in British Columbia as well as a member of the B.C. First Nations Leadership Council, said:

From the perspective of the AFN, no, we don’t believe that the principles of free, prior and informed consent were followed in the creation of this bill. The AFN advocated that more consultation take place with all First Nations. Further to that, the bill was also tabled without proper information sharing to the AFN or to First Nations.

Judy Wilson, former chief of the Union of British Columbia Indian Chiefs, said, “There hasn’t been enough consultation through this process.”

Sarah Niman, Director of Legal Services at the Native Women’s Association of Canada, told our Legal and Constitutional Affairs Committee:

Bill S-13 signals that Parliament is not as serious about doing the work behind reconciliation, but only to say the word for political gain.

Colleagues, this government talks a big talk but repeatedly fails when it comes to the walk. Their actions do not line up with their words.

This is not an arbitrary accusation. I saw it in living colour at the Defence Committee hearings on Bill C-21. Even while Bill S-13 was passing through the legislative process, the government, claiming that Aboriginal and treaty rights must be honoured, was simultaneously trampling all over those rights in Bill C-21.

Paul Irngaut, Vice President of Nunavut Tunngavik Incorporated, told the committee, “There has not been sufficient consultation on the bill.” He further added, “We feel we have not been adequately consulted . . . .”

When Jessica Lazare of the Mohawk Council of Kahnawà:ke testified, I told her that the minister had stated that the bill is respectful of Indigenous rights and that his deputy minister assured the committee, “There were extensive consultations with Indigenous communities across the country when it was introduced the first time.” These were the words of the deputy minister.

I then asked Chief Lazare, “Just to be sure, did the government consult with you before this bill was introduced?”

She gave me a one-word answer: “No.”

So I asked, “Are you aware of any extensive consultations held with Indigenous communities across the country before this specific Bill C-21 was introduced?”

Chief Lazare gave the same answer: “No.”

Colleagues, when Minister LeBlanc appeared at the Defence Committee on Bill C-21, he assured us that Indigenous groups had been consulted, yet the record is clear that they were not. There was no consultation, no cooperation and no free, prior and informed consent.

You would think that the Standing Senate Committee on National Security, Defence and Veterans Affairs would be the perfect place to address this clear violation of Indigenous rights. After all, the Senate is to be the chamber of sober second thought and protect the rights of minorities. Yet when amendments to Bill C-21 were proposed at committee to address this failure to consult and cooperate with Indigenous people, all of them were rejected. It didn’t matter if the amendments were introduced by Conservative members — and, of course, you could say they were partisan — but Senator Anderson introduced amendments and they also failed.

We watched as the same hypocrisy demonstrated by this government was repeated at committee, with some senators saying all the right things and pretending to value Indigenous rights, while simultaneously doing the opposite, ignoring Indigenous voices and trampling on their concerns. We saw it right here across the aisle where Indigenous members voted for legislation that tramples all over their rights.

I occasionally use cartoons and so on as illustrations. I will use one again today. Some days, I feel like I’m watching the old “Peanuts” cartoons, where Lucy sets the football down for Charlie Brown to kick. He runs towards the ball, and just as he winds up to kick it, Lucy pulls it away and Charlie Brown falls flat on his back. But being an eternal optimist, Charlie Brown repeats this over and over, thinking each time that Lucy will keep her word, but of course, it never happens, and we find ourselves chuckling at Charlie Brown’s naivety.

Colleagues, we do not live in a cartoon world, even though sometimes this government makes me feel like we do, yet we have the same naivety on display right here in this chamber. Just the other day, Senator Deacon reversed her position on an amendment to Bill C-21 regarding sports shooters because she received a promise from the government that:

It is not their intention to take away shooting sports in this country for young people, beginners or older people.

Senator Deacon was assured that the government is:

. . . concerned with finding a balance between allowing legitimate shooting sports and competition while also not opening up the back door to handgun ownership.

Senator Deacon said, “. . . I think I at least need to let them keep true to their word.” Charlie Brown.

Colleagues, this is a road that will only lead to disappointment, discouragement and dashed hopes, because this is the very same government that not only said they would honour Indigenous rights, but then put it into law through the enactment of the United Nations Declaration on the Rights of Indigenous Peoples. Do you think a minister’s word will be enough when neither the minister’s words on Indigenous rights nor the treaties themselves in section 35 of the Constitution, UNDRIP and the legislation before us today is enough for the government to keep its word? Senator Deacon does. How about the rest of you?

They still trampled all over those rights by failing to consult on Bill C-21, yet I have no doubt that we are about to witness the spectacle of senators again standing in support of this bill to support Indigenous rights just after having voted down amendments designed to protect those rights. It must be spectacularly discouraging for all Indigenous peoples, at least those who are not supporting this government.

However, if there is one bright light in this fog, it is that in spite of all their concerns, in spite of the lack of consultation and in spite of not being heard, even on the bill that says they must be heard, Indigenous peoples still want this bill passed. Hope springs eternal. In hope against hope, they continue to fight for their rights and incrementally inch forward in that effort. Their patient determination is slowly but surely bearing fruit, with no thanks to this government.

However, I urge you, colleagues, not to see this bill as some kind of panacea because I can assure you that our Indigenous peoples do not see it that way. The Mohawk Council of Kahnawà:ke has noted that Section 35 of the Constitution Act, 1982:

 . . . applies of its own force and effect. As such, this non-derogation clause is — at best — a reminder of well-established constitutional limits; it does not provide any substantive legal benefit to Indigenous communities.

Chief Jessica Lazare added that, “. . . At best, such clauses are like Post-it notes pointing to the Constitution.”

Make no mistake, colleagues, this is what Bill S-13 will do. It will place a Post-it note on every piece of legislation, reminding this government what it already knows full well — Aboriginal and treaty rights have not been granted; they are inherent. They are not to be abrogated or derogated from. They are not subject to negotiation or subjugation. Rather, as stated on the website of the Department of Justice, “The rights of Indigenous peoples, wherever they live, shall be upheld.”

Colleagues, I encourage you to support this bill today. I will, and I think all of my colleagues here in my caucus will support this bill, not because it will change the way this government behaves — it won’t — but because it salutes our Indigenous peoples for their perseverance, their undying optimism and their unflagging efforts to secure what already belongs to them. Thank you, colleagues.