Canada: Canada Announces Unqualified Support For UNDRIP – Suggests The Crown's Duties Of Meaningful Consultation And Accommodation Serve To Fulfil The Principles Of "Free, Prior And Informed Consent"

On May 10, 2016, the federal Minister of Indigenous and Northern Affairs, Hon. Carolyn Bennett, announced Canada's latest position statement on the United Nation Declaration on the Rights of Indigenous Peoples (the Declaration). The announcement came on the second day of the United Nations Permanent Forum on Indigenous Issues, 15th Session, being held in New York until May 20th.

Canada's Statement

Minister Bennett confirmed that Canada is now a full supporter of the Declaration, without qualification, and that Canada intends to adopt and implement the Declaration in accordance with the Canadian Constitution. Other highlights of Minister Bennett's address include reference to Section 35 of the Constitution and the principle of "free, prior and informed consent" (FPIC) in the Declaration:

  • Through Section 35 of the Constitution Act, 1982, Canada has a robust framework for the protection of Indigenous rights. By adopting and implementing the Declaration, Canada is breathing life into it, and recognizing it as a full box of rights for Indigenous peoples.
  • Canada believes that its constitutional obligations of meaningful consultation and accommodation serve to fulfill the principles of FPIC in the Declaration. Canada sees modern treaties and self-government agreements as the ultimate expression of FPIC among partners.
  • Canada's support for the Declaration means nothing less than a full engagement on how to move forward with adoption and implementation, done in full partnership with First Nations, the Métis Nation and Inuit Peoples, as well as including Canada's provinces and territories.

The text from Minister Bennett's speech has been posted by Northern Public Affairs Magazine. A summary of Minister Bennett's remarks from the UN are available here, and the federal government's news release is available here.

Minister Bennett's announcement represents a marked shift in Canada's official position since the UN General Assembly adopted the Declaration in 2007. Canada initially voted against the Declaration, along with the United States, New Zealand and Australia. Canada subsequently issued a qualified statement of support for it in 2010, referring to it as an aspirational but non-legally binding document. Australia, New Zealand and the United States have also since endorsed the Declaration but each stated at the time of endorsement that it is not legally binding.

Canada's past position was based mainly on concerns with the broadly worded provisions in the Declaration related to lands, territories and resources, and a concern that the principle of FPIC in several principles could be interpreted as a veto right against government actions or decision-making affecting Aboriginal groups' traditional lands. The Declaration requires states to seek the FPIC of Aboriginal groups in several instances, including for the approval of any projects affecting Aboriginal lands or territories. It also provides a right of redress for lands, territories, and resources that have been confiscated, taken, occupied, used or damaged without the FPIC of the affected Aboriginal group(s).

The content of Canada's new position statement is not unexpected. The federal Liberal government has on previous occasions announced its intention to implement the Declaration, including as part of its election platform and in the Prime Minister's Ministerial Mandate Letter to Minister Bennett. At the provincial level, Alberta was the first to commit to implementing the Declaration in July 2015, when Premier Rachel Notley issued a mandate letter to her eleven Cabinet Ministers asking them to conduct a review of their Ministry's policies, programs and legislation (including budget implications) with a view to developing a plan on how to implement the Declaration. However, the Alberta government has not yet publicly announced how it will implement the Declaration.

On a related note, NDP Member of Parliament, Romeo Saganash, introduced a private member's bill on April 21, 2016 that, if passed, would require Canadian laws to be harmonized with the principles of the Declaration. Bill C-262An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples – is currently undergoing its first reading in the House of Commons and is substantially similar to a bill introduced by Saganash in the previous session of Parliament.

Canada's approach to implementation and FPIC

It is important to underscore that the removal of Canada's objector status will not affect existing Canadian law until the provisions of the Declaration are implemented by the federal government. It will also not impact provincial or territorial government decision-making unless and until these governments take steps to implement the Declaration within their respective jurisdictions. Even then, the extent to which Canadian law may be substantively impacted will depend on Canada's interpretation of the Declaration and manner in which it decides to carry out implementation.

The approach that the federal government will ultimately take in terms of implementation measures remains to be seen – whether it be through amendments to existing legislation, creation of new legislation, or through policy statements or other measures. The manner in which the federal government implements the FPIC provisions of the Declaration will likely be one of the issues that is most closely watched issues by both Aboriginal groups and industry.

In addition to the highlights of Minister Bennett's statement referenced above, some insight into Canada's potential approach on FPIC and the Declaration generally can be drawn from a recent Q&A session with Minister Bennett conducted by Northern Public Affairs Magazine. The magazine received written responses from Minister Bennett on April 26, 2016 to questions posed by it. Notable highlights of her responses include:

  • The government will, in full partnership and consultation with First Nations, Inuit and the Métis Nation, conduct a review of federal laws to ensure the Crown is executing its obligations in accordance with its constitutional and international obligations.
  • Over the next several months, the government will work, in consultation with Indigenous groups and other stakeholders, on an approach to the implementation of the Declaration.
  • Canada already has a portfolio of federal policies and programs that reflect the Declaration's principles, as well as constitutional protections for Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982.
  • At its core, FPIC is about meaningful consultation with Indigenous peoples on issues of concern to them with a goal of achieving consensus. Industry proponents, First Nations and government should all strive towards consensus.
  • The Crown's duty to consult, and when appropriate accommodate, Indigenous groups, corresponds significantly with elements of the concept of FPIC, as interpreted as an obligation to 'seek to obtain' consent.

Further insight into the government's potential stance on FPIC can be drawn from earlier comments made by Canada at the UN Permanent Forum on Indigenous Issues on Monday, May 9th. In a press conference on Monday preceding Tuesday's announcement, Minister Bennett commented that the federal government's adoption of the Declaration puts the resource sector 'on notice' that it needs to seek FPIC before starting projects that impact Indigenous lands. In her statement at the Opening Ceremonies of the Permanent Forum, federal Justice Minister Jody Wilson-Raybould also commented that the participation of Indigenous peoples in decisions that affect their lives is at the heart of the concept of FPIC.

The approach of FPIC being viewed as the objective of consultation rather than a veto right is consistent with the approaches taken by several other countries and organizations. For a more detailed discussion of this and other potential considerations relevant to Canada's implementation of the Declaration, please refer to our previous article posted on Canadian ERA Perspectives.

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions