(Chair) in the chair.

[English]

Hello, honourable senators. I’m Brent Cotter, a senator from Saskatchewan and chair of the committee. I would like to invite my colleagues to introduce themselves, starting with the deputy chair.

[Translation]

Senator Pierre-Hugues Boisvenu, deputy chair of the committee, from the senatorial division of de La Salle, Quebec.

[English]

Dennis Patterson from Nunavut, Inuit Nunangat.

Senator Paul Prosper from the Nova Scotia region, the traditional territory of the Mi’kma’ki.

Senator LaBoucane-Benson, Treaty 6 territory, Alberta.

[Translation]

Bernadette Clement from Ontario.

[English]

Paula Simons from Alberta, also Treaty 6 territory.

[Translation]

Good morning. Renée Dupuis, senatorial division of The Laurentides, Quebec.

[English]

Welcome, Mr. Obed. It’s always so good to see you. You give so much of your time to this committee. Thank you. My name is Mobina Jaffer.

Thank you, colleagues.

Honourable senators, we are meeting once again to continue our study of Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts. For our first panel, our committee is pleased to welcome from the Native Women’s Association of Canada, or NWAC, Sarah Niman, joining us in person. Welcome, Ms. Niman.

We have from the Assembly of First Nations, or AFN, Sara Mainville, Partner at the JFK Law LLP, and Cheryl Casimer, executive member of the First Nations Summit. They are joining us by video conference. Welcome, Ms. Mainville and Ms. Casimer.

Also joining us in person from the Inuit Tapiriit Kanatami, or ITK, are Natan Obed, President — welcome back — and Will David, Director of Legal Affairs. Welcome to you all.

We’ll begin by inviting opening remarks from each of the three organizations — Ms. Niman first. You have approximately five minutes each. That will be followed by questions and dialogue with senators for the better part of the remaining hour. Ms. Niman, you’re welcome to begin.

Hello, boozhoo, honourable senators.

Bill S-13 does not affirm the Indigenous rights contained within the UN Declaration on the Rights of Indigenous Peoples, or UNDRIP. This is a significant barrier to Native Women’s Association of Canada’s support for Bill S-13, as written.

Bill S-13 has been long in the making. In written submissions, in person and virtual consultations with Canada, NWAC repeated its position that a non-derogation clause in the federal Interpretation Act must specifically affirm the rights contained in the UNDRIP.

The country came together over a period of years to table and eventually enact the United Nations Declaration on the Rights of Indigenous Peoples Act in June 2021 with the aim to implement the UNDRIP as Canada’s framework for reconciliation. The Indigenous women, girls, two-spirit, trans and gender-diverse people NWAC represents are now waiting to see whether Canada’s commitment signals an important change in substantive law, as former justice minister David Lametti promised, or vacuous political performance.

The proposed amendment promises not to derogate or abrogate from section 35 and treaty rights. This focus on section 35 does not address Indigenous gender-based disempowerment. Section 35 has not protected Indigenous women from facing gender-specific discrimination within membership, on-reserve housing, governance roles, child and family service provisions and the criminal justice system, among others.

The National Inquiry into Missing and Murdered Indigenous Women and Girls calls upon Canada to implement the UNDRIP to protect Indigenous women from discrimination within law and politics. A non-derogation clause, or NDC, is needed because Canada has repeatedly and systemically failed to honour section 35 and treaty rights. What does the failure to include the UNDRIP in the NDC tell us about Canada’s intentions? Lack of consultation is not an accurate explanation as to why the UNDRIP is not included in the proposed NDC.

We have heard assurances that Bill S-13 promotes compliance with the UNDRIP Act. NWAC is highly critical of this misleading statement. We see no indication that Bill S-13, as written, provides any direction to ensure Canada’s laws are interpreted to be consistent with the UNDRIP.

Therein lies the problem. Leaving Bill S-13 as is maintains the status quo for Indigenous women who face an uphill battle when they want to claim their rights as Indigenous people. Section 35 and treaty rights are often defined through litigation, using narrow tests and on behalf of whole communities. By contrast, the UNDRIP protects and affirms Indigenous people’s inherent rights to self-determination and membership, among other things. The UNDRIP’s 46 articles clearly set out Indigenous people’s inherent rights, meaning they are affirmed by default.

So far, section 35 legal advocacy has been akin to using a sword to fight back against those who violate those rights. The UNDRIP acts as a shield to protect Indigenous people’s inherent rights by affirming those rights already exist without the need to prove them on a case-by-case basis. The sword-and-shield analogy illustrates important distinctions for Indigenous women and gender-diverse people. As a marginalized group, they face a significant power imbalance when they seek to affirm their rights.

NWAC believes it is crucial that a federal Interpretation Act NDC include section 35, treaty and UNDRIP rights in order to breathe life into reconciliation’s promises.

The UNDRIP is not a new human rights treaty, but its application in Canada is only beginning to be tested in courts. For guidance, this committee can look to early case law in B.C. For example, last month, B.C. Supreme Court Justice A. Ross confirmed that the NDC in the provincial Interpretation Act requires interpreting laws in a manner consistent with the standards set out in the UNDRIP.

Justice Ross’s ruling clarifies that when assessing whether a law is consistent with section 35, treaty rights and the UNDRIP, their non-derogation clause is not:

. . . a trailer that is attached to the back-end of the process. Instead, it is an umbrella that covers the entirety of the process.

This early engagement with an NDC containing the UNDRIP tells us that when courts are called to interpret legislation, they must consider the text, purpose and context of a law so as not to abrogate or derogate from any of the rights affirmed in the UNDRIP.

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. This committee’s work is therefore an opportunity to make good on Canada’s promise to implement the UNDRIP by ensuring that every time a law is interpreted, it affirms Indigenous peoples’ basic rights — their minimum standards — as codified in the UNDRIP.

Thank you, meegwetch.

Thank you very much. Now, I invite Ms. Mainville and Ms. Casimer to address senators.

Good morning. I am 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.

I’m honoured to be able to provide comments today on behalf of the Assembly of First Nations on Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts.

I would like to begin by thanking the standing committee for inviting me to provide remarks and to British Columbia Regional Chief Terry Teegee for asking me to speak on behalf of the AFN in his place as the portfolio holder.

By way of background, the AFN advances the rights and priorities of First Nations across Canada as a national advocacy organization and as mandated through resolution by the First Nations-In-Assembly, which includes advocating for the full implementation of the United Nations Declaration on the Rights of Indigenous Peoples.

I myself have been working towards the implementation of the UN declaration for many years. Nationally, I am a member of the AFN’s ad hoc chiefs committee on the UNDRIP Act. Within my own region, I have also participated in processes regarding the establishment of B.C.’s Declaration on the Rights of Indigenous Peoples Act.

As we work to implement the UN declaration domestically, lawmakers and those who apply laws and policies need explicit interpretive guidance to achieve consistency with the UN declaration.

Section 5 of the UNDRIP Act commits Canada to take all measures necessary to ensure that the laws of Canada are consistent with the declaration. Canada also made a similar commitment when it accepted the UN declaration without reservation at the United Nations in 2016.

As we work to amend the Interpretation Act, we have an early opportunity to begin aligning Canada’s laws with the UN declaration and take all measures necessary to ensure that the non-derogation clause meets the standards set out in the declaration. The AFN shares the perspective of other Indigenous organizations that the proposed language in Bill S-13 does not meet the standards of the UNDRIP. For this reason, we view Bill S-13 as being deficient. Specifically, we are concerned about the absence of a reference to the standards affirmed by the UN declaration.

The rights and principles in the UN declaration constitute the minimum standards for the survival, dignity and well-being of Indigenous peoples all over the world.

As an interpretive aide for the judiciary and legislative decision makers on federal legislation, a non-derogation clause referencing the UN declaration would require every law to be construed as being consistent with the declaration. This is necessary for the implementation of the declaration and meaningful rights recognition.

The AFN proposes that one additional subsection be added to the proposed section 8.3 as 8.3(3), stating:

Every enactment must be construed as being consistent with the United Nations Declaration on the Rights of Indigenous Peoples.

This addition will provide immediate guidance on statutory interpretation of federal laws to ensure that every act or regulation — or any portion of an act or regulation — must be interpreted as being consistent with the UNDRIP.

Including the UN declaration in Bill S-13 would support Canada in taking a necessary measure to ensure that the laws of Canada are consistent with the UN declaration, and with an UNDRIP-focused Interpretation Act amendment, the common law will be guided by what Parliament does here today.

Before I close, I would like to raise a few points regarding process. How we work and live in relation to one another are central underpinnings of the UN declaration. Appropriate and meaningful consultation with First Nations on all matters that affect them is essential and critical for implementation work, including Bill S-13. Obtaining First Nations’ free, prior and informed consent, or FPIC, is a legal requirement of the UNDRIP Act.

I encourage this committee to ask itself what its role is in this work and to be an ally in ensuring that FPIC has always been secured prior to a legislative proposal coming to your table.

To summarize, without explicit interpretive guidance to lawmakers and those who apply laws and policies today, the legislative significance of implementing the declaration might not be experienced tomorrow. Our children and youth will be the ones who will be the most impacted by the UN declaration not transforming and acting as the reconciliation pathway it is intended to be.

I wish to thank the committee once again for this invitation. [Indigenous language spoken].

Thank you, Ms. Casimer. I now invite Mr. Obed and Mr. David to present on behalf of the Inuit Tapiriit Kanatami.

Qujannamiik, thank you. It’s always wonderful to be here in the Senate with you doing such important work. I’m pleased to offer remarks on Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts to ensure that all federal laws must be interpreted to avoid abrogating or derogating from section 35 rights.

Amendments to the Interpretation Act to include a universal non-derogation clause have been a long-standing priority for Inuit. The Inuit Nunangat Declaration signed by the Prime Minister and Inuit leaders in 2017 explicitly recognizes full and fair implementation of the obligations and objectives of Inuit land claim agreements as foundational for creating prosperity among Inuit, which benefits all Canadians. The Inuit-Crown Partnership Committee, which is the process created by the Inuit Nunangat Declaration, commits both Canada and Inuit to take action on shared priorities and monitor progress moving forward.

Among the first priorities identified in the Inuit-Crown Partnership Committee was to amend the Interpretation Act to include a universal non-derogation clause for all pieces of federal legislation. We want to be clear that this is a long-standing Inuit priority, and we support the substance of the legislation as it stands.

However, 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, which is inconsistent with section 5 of the federal United Nations Declaration on the Rights of Indigenous Peoples Act.

The federal United Nations Declaration on the Rights of Indigenous Peoples Act states:

The Minister must, in consultation and cooperation with Indigenous peoples and with other federal ministers, prepare and implement an action plan to achieve the objectives of the Declaration.

The term “consultation and cooperation” in this act has yet to be defined. However, this language does mean that the process of consultation and cooperation in the development and implementation of the action plan is identical for Inuit, First Nations and Métis as it is for other federal ministers.

This is an extremely high bar, and one that Inuit are concerned the government has failed at in this case and will likely continue to ignore as the declaration is implemented — particularly with respect to the implementation of the action plan and with respect to the measures to align Canada’s laws with the declaration.

In conclusion, a universal non-derogation clause has been a priority for both Inuit and Canada for the past six years, and for Inuit for much longer than that. For this reason, ITK offers unqualified support for Bill S-13.

We note that not every piece of legislation needs to be co-developed nor that all federal initiatives should be consistent with an as-yet-undefined legal standard of consultation and cooperation. However, where Canada commits to co-develop legislation or where Canada itself commits to consult and collaborate with Indigenous peoples through our representative institutions, then Inuit have specific and clear expectations about the process of development as well as the process of communicating the outcomes.

Nakurmiik.

Thank you, Mr. Obed.

I will now invite senators to pose questions, beginning with the sponsor of the bill, Senator LaBoucane-Benson, followed by the deputy chair, Senator Boisvenu.

Thank you, chair.

President Obed, what is the internal consultative process for ITK for you to come to us to say that ITK either agrees or disagrees? What is the process?

On any piece of federal legislation or any piece of large public policy that is federal in nature, the Inuit from our four treaty organizations — Nunatsiavut Government in northern Labrador, Makivik Corporation in Nunavik in northern Quebec, Nunavut Tunngavik Incorporated in Nunavut, who will appear at the next panel, and the Inuvialuit Regional Corporation — make up the voting membership of the Inuit Tapiriit Kanatami board of directors. They are democratically elected leaders that serve all populations of Canadian Inuit. They convene at ITK to deliberate and give direction to our institution.

In the case of this particular speech I just gave, this is a process where we are interacting with our Inuit treaty organizations and getting clear direction from their leadership so as to have a national position. That process does take time, and it does require all the elements to make a decision. That’s why proposals and amendments on the fly are not things we can turn around immediately.

We heard from other witnesses that they are proposing phrasing on the UNDRIP clause. Do you think the Inuit are ready to accept or support proposed phrasing for the addition of an UNDRIP clause?