Government of Alberta

Written Submissions to Senate Standing Committee for Aboriginal Peoples

Bill C- 15: An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples

Introduction

Alberta is committed to a path of reconciliation and shared prosperity with Indigenous peoples. This path reflects the unique legal landscape in Alberta, which provides protection for the rights of Indigenous peoples within the context of our historical treaties, the 1930 Natural Resources Transfer Act (NRTA), Canada’s constitutional framework, and common law.

Alberta has significant concerns about Bill C- 15: An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples (Bill C-15) and is of the view that there must be greater clarity to enhance relationships and to avoid prolonged litigation. Instead of a Bill to promote reconciliation, the federal government has introduced one that will sow frustrations and deepen divisions among people in Canada. We already see the United Nations Declaration on the Rights of Indigenous People (the UN Declaration) being raised in litigation across the country with varying interpretations being advanced. Bill C-15 as currently drafted further complicates the courts’ roles to resolve this existing litigation.

Our concerns revolve around the lack of clarity in Bill C-15. Specifically, Alberta has advocated since prior to introduction of Bill C-15 that amendments are needed to clarify: - the legislation only applies to laws enacted by the federal government and not provincial laws as suggested by use of the phrases “Canadian law” in section 4 and “laws of Canada” in section 5 ; - the UN Declaration is not being incorporated into domestic law and, while it may have a role in the interpretation of federal legislation, does not aid in the interpretation of provincial legislation or section 35 of the Constitution Act, 1982; - nothing in the legislation creates or adds new rights as protected by section 35 of the Constitution Act, 1982; and - “free, prior and informed consent” (FPIC) does not equate to a “veto” .

The Government of Alberta has consistently communicated these requests in meetings with the federal government and in correspondence, articulating with great specificity our concerns. However, we have yet to see the federal government take meaningful steps to address these concerns.

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Classification: Public With this written submission, the Government of Alberta would like to ensure the members of the Standing Senate Committee on Aboriginal Peoples have a succinct list of all our requests. If all of Alberta's requests are met, the final Bill will have the certainty and clarity required to ensure Indigenous peoples, companies, investors, Albertans and all Canadians are confident of legislation that promotes reconciliation and shared prosperity with Indigenous peoples.

1. Legislation Applies to Only to Laws enacted by Canada

There should be no ambiguity in Bill C-15 whether provinces and territories have any obligations or responsibilities under the legislation. Prior to introduction, Alberta asked the federal government to articulate that the obligations created by Bill C-15 are requirements for the federal government alone.

The federal response addressed a small number of our concerns by removing the word “national” from “action plan” and clarifying the role of federal ministers in Bill C- 15. In addition, the preamble acknowledged that provincial, territorial, and municipal governments “each have the ability to establish their own approaches to contributing to the implementation of the UN Declaration by taking various measures that fall within their authority”.

However, these minor amendments do not provide enough clarity on whether provinces are obliged to establish their own action plans or approaches, and the legislation may as a result increase Indigenous expectations that provincial governments are required to implement the UN Declaration. Further, the preamble suggests there is an expectation on the part of the federal government that provinces and territories will implement the UN Declaration.

Many of the potential legal and policy implications of Bill C-15 will affect areas of exclusive provincial jurisdiction under the Constitution. Alberta urged the federal government to consider the implications that Bill C-15 will have on powers or authorities that are constitutionally within provincial jurisdiction. Courts are unlikely to uphold federal attempts to legislate on matters of provincial jurisdiction. Indigenous Albertans may face increased frustration and costs when their expectations of federal outreach are not met, as the Courts are unlikely to uphold federal attempts to legislate on matters of provincial jurisdiction. Federal overreach could further harm investor certainty in Alberta and Canada and frustrate provincial efforts to create a stable environment for a strong economic recovery. This is not how Alberta or Canada builds a constructive path towards reconciliation and shared prosperity.

Alberta requests amendments to Bill C-15 to: - clarify that the “measures” in section 5 are limited to legislative measures within federal jurisdiction; - clarify that the requirements of an “action plan” and that tabling of an “annual report” in sections 6 and 7 are limited to matters within federal jurisdiction and to actions by the Government of Canada alone ; and - replace the phrase “laws of Canada” in Bill C-15 with “laws enacted by Parliament.”

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Classification: Public

2. UN Declaration is not domestic Law

Canadian courts currently use the UN Declaration as an interpretive aid for domestic legislation. This makes the passage of the proposed legislation unnecessary if the purpose is to recognize the UN Declaration has a role in the statutory interpretation of federal laws. The actual wording of Bill C-15 does not, however, reflect this intention.

Section 4(a) of Bill C-15 expressly states that a purpose of the Act is to “affirm the Declaration as a universal international human rights instrument with application in Canadian law.” Section 2(3) also speaks to the “application of the Declaration in Canadian law.” This wording indicates the UN Declaration applies in Canadian law, and not simply as an interpretative aid.

Furthermore, the federal 2020 Throne Speech commitment to introduce “legislation to implement” the UN Declaration, was followed by a federal engagement slide deck in 2020 (circulated to federal, provincial and territorial Ministers and National Indigenous Organizations) expressly confirming the federal government’s commitment to “fully implementing the Declaration.” Bill C-15 reinforces the federal government’s commitment to implementation. The preamble mentions implementation of the UN Declaration nine times, and section 4 states that a purpose of the Act is to “provide a framework for the Government of Canada’s implementation of the Declaration.” Bill C-15 also speaks of implementing the rights and principles of the UN Declaration in Canada, and taking measures to achieve the objectives of the UN Declaration.

Alberta is unclear what Canada intends with Bill C-15. The apparent attempt to implement the UN Declaration into domestic law is incompatible with aspects of current Canadian law. Canada should be mindful of the possibility of misleading the expectations of interested parties.

Alberta is concerned that Bill C-15 as currently drafted enables ongoing federal intrusion into matters of exclusive provincial authority. The federal government has stated the UN Declaration would not alter the Constitution, would not make the UN Declaration law, and would not intrude on the powers of the provinces. Clarity on all those points is required.

Lastly, the UN Declaration contains many articles addressing rights and entitlements to “lands, territories and resources.” As drafted, Canada, through Bill C-15, is effectively creating expectations relating to revenue sharing, which the federal government is simply unable to deliver within the context of Alberta’s treaties and the constitutional division of powers. Canada should be extremely cautious to make promises they cannot deliver within constitutional limitations or to otherwise mislead the expectations of Canada’s Indigenous peoples, which would be disingenuous, and inconsistent with Canada’s commitment to reconciliation.

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Classification: Public The following revisions to the wording within Bill C-15 would address these concerns: - the UN Declaration is not incorporated into domestic law but is confirmed as an interpretive aid for domestic legislation; - The UN Declaration does not have broad application “in Canadian law” but applies only to laws enacted by the government of Canada; and - The UN Declaration is an international instrument that may be used by - courts when interpreting domestic legislation, but: o It is not substantively part of the law of Canada; and o It does not serve a role in the interpretation of Canada’s Constitution.

3. No New s.35 Rights

Canada has a unique legal and political framework that affirms and protects the rights of Indigenous peoples. These rights are reflected in our Constitution, in Treaties, in the NRTA, in legislation, and through the common law, including the judicially mandated duty to consult. This framework has been established painstakingly by generations of Canadians. It reflects the unique historical, legal, and Constitutional context of our country. It is not clear what Bill C-15 will do to this existing framework. It would be naïve to think that there is no possibility of harm.

Section 2 (2) of Bill C-15 says “This Act is to be construed as upholding the rights of the Indigenous Peoples of Canada recognized and affirmed by section 35 of the Constitution Act,1982, and not as abrogating or derogating from them.” This language means that Bill C-15 will not take away from Indigenous rights. This provision is open to interpretation that Bill C-15 recognizes and implements the rights and obligations in the UN Declaration, which are not currently recognized in Canadian law.

Additionally, the Bill may be used to support space for a third order of government not contemplated in Canada’s Constitution, due to the UN Declaration's principles of self-government. The preamble of Bill C-15 states that “the Government of Canada recognizes that all relations with Indigenous peoples must be based on the recognition and implementation of the inherent right to self-determination, including the right of self-government.” The federal government cannot unilaterally recognize or delineate section 35 rights, including self-government rights, through federal legislation.

Alberta requests the following amendments to Bill C-15 for clarity on its impact to our body of law interpreting s.35 of the Constitution act, 1867: - delete section 2(2) or revise it to include balanced wording, expressly confirming that nothing in the legislation shall be construed as “adding to or creating new” section 35 rights. - Delete or define the recognition of ‘self-government’

4. Free Prior and Informed Consent (FPIC)

While the Supreme Court of Canada has confirmed that the legal duty to consult does not equate to a First Nations veto, and while Canada has indicated it does not Page 4 of 5

Classification: Public see FPIC as an Indigenous veto, Bill C-15 changes the legal landscape if enacted. It risks creating Indigenous, as well as investor expectations, that FPIC means more than it does. Without significant clarity on what FPIC means and its scope, stakeholders will have different expectations, requiring interpretation by the courts, and potentially creating irreconcilable conflicts and divisions. This outcome would be the opposite of effective, respectful reconciliation.

Alberta seeks the following amendments to Bill C-15 to address our concerns: - Clarify that FPIC does not mean a veto by Indigenous peoples.

Conclusion

If Bill C-15 is interpreted broadly, Confederation will be fundamentally altered without adequate consultation of Canadians and provincial and territorial governments who are directly impacted. The consensus required for such changes is challenging, but necessary to avoid increasing cynicism and discord across our country. The federal government’s refusal to provide clarity in Bill C-15 does not serve the true spirit of reconciliation. If the UN Declaration is to be implemented in Canada, it should be done thoughtfully, purposefully, and within the bounds of Canada’s Constitution, and in a manner that reflects the unique jurisdictional authorities and environments in each province and territory.

The Standing Senate Committee on Aboriginal Peoples’ adoption of the amendments we have put forward today will increase our confidence, and the confidence of all Canadians. We encourage the federal government to take the time to make the amendments proposed.

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Classification: Public