Senators Kim Pate and Marty Klyne Virtually Visit UWindsor’s Legal Process in Canada Class to Discuss Senate’s Role in Implementing TRC’s 94 Calls to Action

On Wednesday, December 1st, Senators Kim Pate of Ontario and Marty Klyne of Saskatchewan virtually visited UWindsor’s second-year Legal Process in Canada class, taught by Dr. Geoffrey Callaghan. They discussed the Senate’s role in implementing the Truth and Reconciliation Commission’s 94 calls to action and answered students’ questions on the topic in a Q&A that followed. Students were excited for this rare opportunity to speak directly with two members of Canada’s upper house of Parliament about a pressing issue in our country’s politics. 

How is the Senate Advancing the TRC’s 94 Calls to Action?

Senator Klyne, whose work focuses on advancing Indigenous economic development, first listed a few of the bills that the Senate has helped pass which have advanced reconciliation and Indigenous rights in the country. 

For instance, in 2019, the Senate helped pass Bill C-91 to help “revitalize Indigenous languages”. Sponsored by the Honorable Murray Sinclair, Chair of the TRC, the Senate “made improvements [to this bill] to provide access to federal services in Indigenous languages where capacity and demand exist”.

In the same year, explained Senator Klyne, the Senate also helped pass Bill C-92 “to restore Indigenous jurisdiction over child and family services”. This bill, sponsored by Métis Senator Patti LaBoucane-Benson of Alberta, importantly helped “address the legacy of residential schools”. 

This year, the Senate also passed Bills C-8 and C-5. The first, sponsored by Inuvialuk Senator Margaret Dawn Anderson of the Northwest Territories, “established a new citizenship oath affirming Aboriginal and treaty rights”. The second, sponsored by Mi’kmaq Senator Brian Francis of P.E.I, “established the National Day for Truth and Reconciliation, commemorated on September 30th”. 

Most notably, the Senate passed Bill C-15 this year, which Senator Klyne described as “the most historic bill for reconciliation in Canadian history”. This bill requires that the United Nations Declaration on the Rights of Indigenous People (UNDRIP) be implemented in Canada through an action plan. Above all, it “recognizes Indigenous peoples’ inherent rights to self-determination in Canadian law”. Senator Klyne said he was especially proud to have highlighted economic reconciliation in his work on this bill, which answers the TRC’s call to action 92—business and reconciliation. 

Senator Klyne mentioned some other bills and projects that the Senate is currently working on in order to advance the TRC’s calls to action. This includes Bill C-22 to repeal mandatory minimum criminal penalties, which answers call to action 32. Another bill headed by the Hon. Murray Sinclair seeks to repeal section 43 of the Criminal Code, which concerns corporal punishment for kids. This would answer call to action 6. Finally, a bill to establish Indigenous membership on the Historic Sites and Monuments Board is in the works and would answer call to action 79. 

Senator Pate, who has worked extensively on prison law and in advancing Indigenous women’s rights, also highlighted the Senate’s more fundamental role in giving a voice to underrepresented groups and regions. Because members of the elected House of Commons are more focused on issues that will get them votes come election time, they often let those related to underrepresented groups fall by the wayside. That’s where the Senate comes in. 

“One of the challenges is that the government doesn’t see it as something being pushed by the public, so whether it’s issues related to Indigenous people, issues related to people living in poverty, people with mental health issues. Often these issues are not the ones that elected officials think will help them get back into office. And so, I think we [the Senate] have a huge responsibility to ensure we represent those interests,” Senator Pate said. 

Senator Klyne also stressed that the Senate itself is made up of members of underrepresented groups. He mentioned that the Senate has gender parity, that approximately 10% of Senators are Indigenous, that there has been an increased presence of racialized and LGBTQ+ Senators in recent years, and that a quarter of Senators hail from Quebec, thus helping safeguard Canada’s official languages. 

Even though there has been much recent progress in Canada to advance Indigenous rights, such as with the TRC, UNDRIP, and the Missing and Murdered Indigenous Girls Inquiry, Senator Pate said that much work still needs to be done. “Even as there have been very progressive developments,” she said, “where we see the litmus test of how well we’re doing on equality when it comes to Indigenous peoples, in my humble opinion, is when we look to our streets, our prisons, and the death rates. And in all three of those, topping the charts are in particular Indigenous women, and that is a horrendous legacy that we have to change.”

After the Senators’ presentation, Dr. Geoffrey Callaghan, who teaches Legal Process in Canada, added the following optimistic note: “I hope everyone agrees with me that sometimes the cynical attitude that citizens have to government, that the easy attitude to adopt where we sit back and say ‘oh what are they doing, they’re not doing anything, they’re not working fast enough’, that we’ve gotten a little bit more nuance to this, and that we understand that, in fact, we have very good people working very hard, around the clock, on these issues that we talk about in class and in conversations. Senator Pate and Senator Klyne have just given us a really good insight into just how much work is being done on these issues and just how recognized these issues are by officials in our country.”

The visit then turned towards a Q&A, where students got the chance to directly ask the Senators questions. 

The Senate’s Role in Voicing Minority and Regional Interests

Mya Dahma, a second-year student in Law and Politics, addressed the Senate’s fundamental role in representing minority and regional interests. She asked how Senators are able to ensure the representation of minority interests when they pass a bill. 

Senator Pate explained that she was hesitant when she was first approached by a group of Indigenous women who wanted to nominate her to the Senate. “I had seen lots of good sober second thought [in the Senate], but not necessarily a lot of changes,” she explained. She also was not too keen on regional representation. As a self-ascribed “service brat,” she had lived all over Canada, and although she has spent the last thirty years living in Ontario, she didn’t view herself as “just an Ontario Senator”—she felt a responsibility towards all of Canada. 

What drew her to the Senate was the ability to work on legislation and studies that centered around criminalization, imprisonment, and the victimization of women, which for 35 years she had been working on on the ground. “What I really wanted to be able to do was pull back from that and say: how do we stop this? How do we stop the situation where the fastest growing prison population, homelessness population, mising and murdered population, are Indigenous women? And one of the ideas was to look at how do we have greater economic, social, racial, and gender equality? So that was really what drew me to the Senate, the ability to work on some of these issues,” she said.

As part of the Senate’s work on removing mandatory minimums and helping people move on from convictions, many Senators have also been visiting prisons, said Senator Pate. In the past, Senators did not see these realities directly and did most of their work in Ottawa, but this is changing. Especially since the implementation of an Independent Advisory Board for Senate Appointments in 2016, Senators are now more than ever vigilant of the need to consider underrepresented voices. 

Senator Klyne additionally emphasized that “It’s not taken lightly that the Senate was created so that minorities could have a voice. Whenever I look at a bill, certainly I’m serving Canada, but I’m also representing Saskatchewan, and I have to always remind myself that I need to think about how this will impact those without voices and minority voices, and I can’t think of one Senator that doesn’t have that at the forefront.”

“Pretty much all federal legislation is now reviewed by the Senate with an Indigenous rights lens, and that’s more prevalent now than it’s ever been. It’s driven by increased presence of Indigenous Senators and a higher awareness of issues around truth and reconciliation. This in turn puts pressure on the government to anticipate that they will need to meet higher standards in terms of consultation and development of legislation before it comes over to us.”

The Senate’s Aboriginal Peoples Committee and its Role in Implementing the TRC’s 94 Calls to Action

David Shanks, a third-year student in Law and Politics, then addressed the Senate Committee on Aboriginal Peoples, which has existed since the 1990s. He asked the Senators what this committee has done to advance the TRC’s calls to action since they were introduced in 2015.  

Senator Klyne explained that in addition to helping pass the aforementioned Bills C-91, C-92, C-5, C-8, and C-15, “the Aboriginal Peoples Committee has also brought an Indigenous rights lens to other more general subjects, such as cannabis legislation. The committee’s work resulted in government commitments on Indigenous jurisdiction, fiscal frameworks, and culturally and linguistically appropriate education materials.”

Senator Pate added that this committee is also working on removing “ the old but still intact marrying-out provisions [in the Indian Act] that had existed historically and precluded many [Indigenous] women and their descendants from being characterized as First Nations”. 

Additionally, the committee continues to work on nation-to-nation relationships with First Nations and other Indigenous communities, like the Métis and Inuit communities, said Senator Pate. This committee has been visiting prisons as part of its work as well.

Senator Pate importantly emphasized that all Senate committees should be looking at ways to advance decolonization and reconciliation. She encouraged students to ask political candidates and elected officials directly what they’re doing to advance these goals.

 “One of the things I encouraged folks, particularly young people, who were engaging during the [2021 federal] election, was to ask every single candidate, and now I would say ask your MPs and Senators, which TRC calls to action and which Missing and Murdered Indigenous Women and Girls calls for justice are you working on? What are the concrete things you’re doing? I guarantee every single one of us in the Senate and the House of Commons can find calls to action and calls for justice that are germane to the work we have done historically and the work we are continuing to do in our respective positions. And so, we should be able to lay out how is it that we’re actually implementing this. So when I’m asked what are you doing, I can say right away: call to action number 32 and call for justice 4.5, because we’re trying to deal with the mandatory minimum penalties and guaranteed livable income. Now does that mean I’m off the hook to do anything else? Of course not. But then, we can articulate that we can do this specifically and in these areas.”

UNDRIP and Bills C-262 and C-15

Finally, Hanan Zahrah, a second-year student in Law and Politics, brought up Bill C-262, introduced to ensure that Canadian laws are in harmony with UNDRIP. As Hanan mentioned, this bill failed to become law after its third reading in the Senate in June 2019. This bill raised concerns among some that it would give veto powers to Indigenous peoples over government decision-making. Hanan therefore asked the Senators what they thought about C-262 and whether they thought it would ever have a chance of becoming law, or if they thought people would be too concerned over the creation of Indigenous veto power. 

Senator Klyne expressed his disappointment that C-262 did not pass. However, he noted that Bill C-15, closely based on C-262, did pass this year. Thanks to C-15, introduced and sponsored by Senator Murray Sinclair, the Aboriginal Peoples Committee will have a role in ensuring UNDRIP is implemented effectively through an action plan developed through deep consultation with Indigenous peoples.

Senator Klyne also dispelled the misunderstanding that the failed Bill C-262 or the now operational Bill C-15 give Indigenous peoples veto power, as this is certainly not the case. Rather, Bill C-15 states that the free, prior, and informed consent (FPIC) of Indigenous peoples must be obtained before any government measures are taken that might affect Aboriginal or treaty rights. 

In the words of Senator Klyne, FPIC “is not an absolute veto, legally speaking. It’s a relative concept, as C-262 sponsor Romeo Saganash said. However, it is a much elevated standard for consultation and joint decision-making based on self-determination and acknowledgement of land and resource rights. This is a good thing as Canada does not have a good record of respecting indigenous rights, and it’s all about reconciliation.”

Senator Pate, for her part, noted that one of the biggest challenges in terms of implementing the many recent bills related to Indigenous peoples’ rights has been funding. “One of the challenges is, and one of the things that the Senate Committee on Aboriginal Peoples raised, was that there was no funding agreement,” she elaborated. “And so, if you have a bill, or if you have a right but you have no ability to exercise that right because there are no resources, is it a right at all, is the question many of us asked in that moment.”

The Senator likened the situation to the Canadian Charter of Rights and Freedoms, which may look great on paper but is more difficult to implement in practice. She explained: “We’ve got all these rights. On paper, we look great. My friends from other parts of the world say: “Wow, you’ve got the Canadian Charter of Rights and Freedoms,” and I say, yeah, but try exercising that. Try saying you have a right of access, or a right to a hearing, or a right to be treated a certain way, and then have no resources to do it. And it’s a really huge challenge to actually push the government to implement it. So, you might have to bring a legal case. Well, then you need a lawyer. And how do you pay for that lawyer? And so, the fact that we have made a bunch of rights without putting in place the clear mechanisms of how people can exercise those rights, I think is an ongoing challenge, particularly for Indigenous peoples.”

Senator Pate wrapped up the visit by mentioning a memorable point made by Cindy Blackstock, a Gitxsan activist for child welfare and the Executive Director of the First Nations Child and Family Caring Society. “Cindy Blackstock said, well if it’s so tough to stop boil water advisories in Indigenous communities and get Internet and food security, how is it that it wasn’t that tough to make sure there was clean water and Internet and food on the space station? And it made many of us, judges and lawyers, stop and think: of course, it’s the political will. These are policy decisions that certain people decide are important and others decide aren’t. And part of our job is to continue to push to make sure that the Prime Minister’s office and others recognize that these are important issues, not just for us and the people most impacted, but in order to allow our entire country to move ahead in a positive way,” Senator Pate concluded.