Canada's Justice Minister Jody Wilson-Raybould announced at the United Nations ("UN"), while attending the opening session of the Permanent Forum on Indigenous Issues, new support from the federal government for the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP" or the "Declaration"). Some resource industry participants have expressed concerns that the Declaration, which advocates for various rights of Indigenous people and organizations, could add additional regulatory complexity if it fully becomes part of Canadian law. Others, notably some Canadian Indigenous leaders, have suggested that support for UNDRIP will change little as Canadian Government officials have suggested that UNDRIP related commitments will be protected by provisions in the (already existing) Canadian Charter of Rights and Freedoms. That is to say, questions regarding the impact of this new position will be unsettled for the time being.
What is the UNDRIP?
The UNDRIP is a non-binding declaration which aims to address the "need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories, and philosophies, especially their rights to their lands, territories and resources" (UNDRIP Preamble). The Declaration contains several articles recognizing rights of indigenous groups which could potentially change industry regulation and relationships of industry participants with indigenous groups. Such rights in the UNDRIP include:
- the right to self-determination by virtue of that right for indigenous peoples to freely determine their political status and freely pursue their economic, social and cultural developments (Article 3);
- in exercising their right to self-determination, the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions (Article 4);
- requiring states to provide effective mechanisms for the prevention of, and redress for, among other things, any action which has the aim or effect of dispossessing them of their lands, territories, or resources (Article 8(2)(a));
- the right to participate in decision making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions (Article 18);
- requiring states to 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 and administrative measures that may affect them (Article 19);
- the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired (Article 26(1));
- the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources, including requiring states to establish and implement assistance programmes for indigenous peoples for such conservation and protection (Article 29(1));
- the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources (Article 32(1));
- requiring states to consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources (Article 32(2)); and
- requiring states to provide effective mechanisms for just and fair redress for any such activities, and take appropriate measures to mitigate adverse environmental, economic, social, cultural or spiritual impact (Article 32(3)).
Evolution of the Canadian Government's Position
The UNDRIP resolution was first passed by the UN General Assembly on September 13, 2007. Canada was one of four countries – along with the US, New Zealand and Australia – to vote against its adoption at the time. The other three countries have since removed their objection to UNDRIP, which left Canada as the only country maintaining its "permanent objector" status to the Declaration. The federal government was initially hesitant about how the UNDRIP would fit within the Canadian legal system, but Canada has recently moved towards fully supporting the Declaration.
Following the UN's adoption of the Declaration, it has been reported that then federal Indian Affairs Minister Jim Prentice said in the House of Commons, "we have not yet arrived at a text that provides an appropriate recognition of the Canadian Charter, the many treaties that have been signed, and other statutes and policies of the government of Canada, and we continue to work with our aboriginal partners to try and achieve such a text" (Globe and Mail article). In 2010, the Conservative government accepted the Declaration as an "aspirational document", but not as a treaty that could be enforced in Canadian courts. The former government expressed hesitation as to whether the Declaration could be reconciled with Canada's existing legal framework for indigenous rights.
During the recent election, the federal New Democrats and Liberals committed to fully implementing the Declaration, which has been recommended by the Truth and Reconciliation Commission ("TRC") for all Canadian governments (TRC Calls to Action, item 43). Canada will now officially remove its permanent objector status to the UNDRIP and become a full supporter. This step has brought Canada closer to fully implementing the Declaration. However, the government has not indicated whether it will introduce a bill in Parliament to officially make UNDRIP law in Canada. An NDP Member of Parliament has twice introduced a private members bill in the House of Commons to integrate the UNDRIP into Canadian law: a first in 2014 which was defeated is 2015, and a second recently introduced in April, 2016.
Implications for the Energy Industry
Between the federal government's power under section 91(24) of Constitution Act, 1867 over "Indians, and Lands reserved for the Indians"; the provincial government's Constitutional powers over property and civil rights under section 92(13) of Constitution Act, 1867; and shared jurisdiction over environmental regulation, regulation of the energy industry fits within a complex jurisdictional intersection. For example, the British Columbia Supreme Court's recent decision in Coastal First Nations v British Columbia (Environment), 2016 BCSC 34 (See our earlier blog post for comments) held that the province could not defer to the National Energy Board in exercising environmental discretion to discharge the Crown's duty to consult indigenous groups. This could make governmental cooperation more difficult. Aspects of energy regulation such as environmental assessments could be impacted by full adoption of the UNDRIP depending on how the federal government decides to implement its recognition of the UNDRIP in Canadian law.
On the other hand, Canadian law may already accomplish many of the Declaration's aims. The body of indigenous rights developed by the Parliament, Canadian courts, the provincial legislatures and protected by Section 35 of the Canadian Charter of Rights and Freedoms may already recognize and protect some or all of the rights described in the UNDRIP. It is unknown at this time what further steps will be taken by Canadian governments to give effect to the UNDRIP.
A potential complication in the new position regarding the UNDRIP raises is the question of how, if at all, the Crown's duty to consult and accommodate Aboriginal people could change if the UNDRIP is fully transformed into Canadian law. For example, would the Supreme Court's statement in Tsilhqot'in Nation v British Columbia, 2014 SCC 44 that certain rights could be overridden on the basis of the broader public good supported by a "compelling and substantial objective" (Tsilhqot'in, paragraph 77) be consistent with the UNDRIP?
It will be interesting to see what further steps are taken by the federal or provincial governments. We will be monitoring developments surrounding the UNDRIP closely for potential impacts on industry, governments and Aboriginal organizations moving forward.
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