Canada: United Nations Declaration On The Rights Of Indigenous Peoples (UNDRIP) In Canada – Implementation Status Update

It has been over a year since the federal government announced at the UN Permanent Forum on Indigenous Issues that Canada was now a full and unqualified supporter of UNDRIP and that the federal government would be implementing UNDRIP in Canada (details here). Following that announcement, Canada indicated that it would be carrying out consultations on the implementation of UNDRIP with Aboriginal groups and other stakeholders over the course of several months.

Consultation and other related work remain underway a year later but there have been numerous developments over the past twelve months that will likely inform how Canada implements UNDRIP, including its approach to interpreting the principle of "free, prior and informed consent" (FPIC) articulated in UNDRIP. These developments continue to point to an approach that would see consent as the objective of Aboriginal consultation and not an absolute requirement. Below is our round-up of notable federal UNDRIP initiatives that have taken place over the course of the past year, including the latest Principles released in July, as well as an update with respect to British Columbia's new NDP government.

Initial Statements Regarding UNDRIP

In announcing Canada's unqualified support for UNDRIP in May 2016, Indigenous and Northern Affairs Canada Minister Carolyn Bennett stated that the federal government intended to "implement the declaration in accordance with the Canadian Constitution" and that this implementation would be "breathing life into s. 35" which the Government of Canada was now recognizing as the "full box of rights for Indigenous peoples of Canada". These statements were strong initial signals that the Government of Canada intended to interpret the provisions in UNDRIP requiring the "free, prior, and informed consent" of Aboriginal peoples as an objective and not an absolute requirement or veto given that this would be inconsistent with the Canadian Constitution and the jurisprudence on section 35. Indeed, the Supreme Court of Canada once again reaffirmed last month in Chippewas of the Thames that "balance and compromise" are inherent in the reconciliation process mandated by section 35 and that the duty to consult "does not provide Indigenous groups with a 'veto' over final Crown decisions" (paras. 59-60).

In addition to this initial statement, Justice Minister Jody Wilson-Raybould also commented publicly a couple of months later in July 2016 about the unworkability of direct implementation of UNDRIP into law, as certain of its provisions are at odds with Canada's existing legal framework. Rather, she said that the government would consult on implementation on each of the Articles of the Declaration, and that UNDRIP would be implemented over time through legislation, policy and action. In September 2016, Minister Wilson-Raybould also publicly stated that UNDRIP could not be incorporated "word for word" into law, and that implementation of UNDRIP must consider the constitutional and legal contexts of Canada.

Federal Consultation and Implementation Initiatives

1. Review of Environmental and Regulatory Processes Legislation, Expert Panel Report and Discussion Paper

In June 2016, the federal government launched a comprehensive review of four key environmental and regulatory processes: the Canadian Environmental Assessment Act, 2012 (CEAA 2012), the National Energy Board Act (NEBA), the Fisheries Act and the Navigation Protection Act. The federal government indicated that "[c]onsultation will be at the core of this review."

Expert Panel Report

In August 2016, the Minister of Environment and Climate Change established an independent Expert Panel to develop recommendations on potential changes to CEAA 2012. One of the key goals set out in the Panel's terms of reference was to find ways to enhance Indigenous participation and consultation, and to reflect the principles of UNDRIP. The Expert Panel Report, Building Common Ground: A New Vision for Impact Assessment in Canada was released in April 2017. It suggests that the role of Indigenous peoples should be significantly increased from the current environmental assessment process in order to include them in decision-making at all stages of the assessment, in accordance with their own laws and customs, which would include integration of traditional knowledge and providing for dispute resolution processes.

The Expert Panel Report refers to incorporating principles of UNDRIP, including FPIC, and suggests that the proposed new impact assessment regime should be based on a principle of "collaborative consent". It states that FPIC is not inconsistent with the duty to consult and accommodate, but rather should strengthen and supplement it. The Report suggests that Indigenous groups should have the right to withhold consent at the decision stage of the assessment process, however, such right must be exercised reasonably and should be subject to review. Further details of the Report are available on our blog.

The federal government has not yet announced how it will respond to this Report and the reports from the reviews of the NEBA, the Fisheries Act, and the Navigation Protection Act, although some sense of the potential direction can be gleaned from the recently released Discussion Paper, discussed below.

Discussion Paper

On June 29, 2017, the federal government released a Discussion Paper outlining its progress to date in reviewing federal environmental and regulatory processes conducted over the past year, and potential reforms being considered in respect of all four Acts. One of the five guiding principles for any changes that will be made is "[p]articipation of Indigenous peoples in all phases that advances the Government's commitment to" UNDRIP and reconciliation.

One of the key measures being considered is "early and regular engagement and partnership with Indigenous peoples based on recognition of Indigenous rights and interests from the outset, seeking to achieve free, prior and informed consent through processes based on mutual respect and dialogue" [emphasis added]. This language is consistent with the earlier statements of the two federal ministers discussed above and, together with other potential changes in the Discussion Paper, it suggests a more enhanced role for Indigenous peoples in environmental (impact) assessment processes. These potential changes may include:

  • more direct engagement between Crown representatives and Indigenous peoples;
  • developing clear guidance to industry on how to incorporate the interests of multiple stakeholders and consider Indigenous rights and interests;
  • improving participant funding programs for Indigenous peoples and the public;
  • incorporating Indigenous knowledge alongside other sources of evidence;
  • explicitly requiring assessment of impacts on Indigenous peoples;
  • enabling increased Indigenous involvement, including Indigenous-led assessments and formalizing the co-development of frameworks for collaboration with Indigenous peoples;
  • convening working tables with Indigenous peoples and increasing participation of Indigenous peoples on assessment boards and review panels;
  • clarifying roles for consultation and accommodation in regulatory processes;
  • increasing economic participation of Indigenous communities and businesses and creating opportunities for Indigenous partnerships and co-development in monitoring;
  • enabling substitution of project assessments to Indigenous governments; and
  • ensuring that processes better recognize Indigenous jurisdiction, laws, practices and governance systems.

The public is invited to share its views on the Discussion Paper until August 28, 2017 at www.canada.ca/environmentalreviews. The government states that it will reflect on the input received and will continue to consult and engage with Canadians moving forward.

2. Establishment of Ministers' Working Group to Review Indigenous-Related Laws and Policies

On February 22, 2017, Canada announced that it was assembling a Working Group of Ministers to review relevant federal laws, policies and operational practices as they relate to Indigenous peoples, their rights and interests, to help ensure the Crown is meeting its constitutional obligations with respect to Aboriginal and treaty rights; adhering to international human rights standards, including UNDRIP; and supporting the implementation of the Truth and Reconciliation Commission's 94 Calls to Action.

The Working Group is comprised of six Ministers and is chaired by Justice Minister Wilson-Raybould. The Working Group states that it will work with Indigenous leaders, youth, and experts on various legal and policy questions relating to Indigenous peoples, "as it assesses and recommends changes to laws and policies that will meet Canada's constitutional obligations and international commitments and advance reconciliation." A "foundational" part of the review will be the recognition of the rights of Indigenous peoples in all federal laws, policies and operational practices that impact First Nations, Inuit and Métis.

The Working Group has a demanding task ahead of it, considering the amount of federal legislation, policies and practices that may touch on or impact Indigenous rights and interests. It could therefore take some time before any legislative changes are ultimately implemented.

3. Minister's Comments at UN Permanent Forum on Indigenous Issues 16th Session

The Hon. Carolyn Bennett delivered a speech in New York on April 25, 2017, following up on her 2016 speech on Canada's commitment to implementing UNDRIP. She summarized the steps that the federal government was taking to meet this commitment, in particular she noted that:

  • the Ministers' Working Group (described above) has been tasked with a review of all federal laws and policies related to Indigenous peoples, mentioning that this exercise was about "reversing the colonial and paternalistic approaches" and "breathing life into Section 35 of Canada's Constitution";
  • Canada and the Prime Minister are holding annual meetings with First Nations, Inuit and the Métis Nation to identify joint work priorities;
  • Canada is now tracking publicly the process of the 94 Calls to Action of the Truth and Reconciliation Commission, and can show progress on 41 of 46 of those which the federal government has a direct responsibility; and
  • principles of FPIC and Indigenous knowledge are now being built into review processes for environmental assessment in Canada (described above), thereby developing "new, more flexible paths to the recognition of rights and jurisdiction and self-determination as well as new fiscal relationships."

4. Release of Principles respecting the Government of Canada's relationship with Indigenous Peoples

In July 2017, the federal government released a document entitled, "Principles respecting the Government of Canada's relationship with Indigenous Peoples" (10 Principles). The 10 Principles is a list of 10 principles aimed at achieving reconciliation with Indigenous peoples based on "recognition of rights, respect, co-operation, and partnership" as the foundation for transformative change.

In its introduction to the 10 Principles, the federal government states that the implementation of UNDRIP "requires transformative change in the Government's relationship with Indigenous peoples." The government states that it will fulfil its commitment to implementing UNDRIP "through the review of laws and policies, as well as other collaborative initiatives and actions." It states that this approach aligns with UNDRIP, which does not provide specific guidance for implementation, but contemplates that it may be implemented by States "through various measures".

The 10 Principles touches on an array of subject matter, such as the recognition of the right to self-determination and self-government, reconciliation, the honour of the Crown, treaties and agreements as acts of reconciliation, section 35 rights, a renewed fiscal relationship, and a distinctions-based approach, as well as FPIC.

The 6th principle addresses FPIC directly, stating: "Meaningful engagement with Indigenous Peoples aims to secure their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights on their lands, territories, and resources" [emphasis added]. More specifically, the discussion of the 6th principle states that the government is committed to relationships that "builds on and goes beyond the legal duty to consult" by recognizing "the right of Indigenous peoples to participate in decision-making in matters that affect their rights through their own representative institutions and the need to consult and cooperate in good faith with the aim of securing their free, prior and informed consent" [emphasis added]. It further states that the importance of FPIC, as identified in UNDRIP, "extends beyond title lands. To this end, the Government of Canada will look for opportunities to build processes and approaches aimed at securing consent, as well as creative and innovative mechanisms that will help build deeper collaboration, consensus, and new ways of working together" [emphasis added].

Provincial Update – BC Commits to Implement UNDRIP

On the provincial front, the government of British Columbia recently joined Alberta in committing to implement UNDRIP in the province. With a new NDP minority government in place (supported by the BC Green Party), the commitment by the BC NDP to adopt UNDRIP is a "foundational piece" of the relationship between the two parties. In particular, the 2017 Confidence and Supply Agreement between the BC Green Caucus and the BC New Democrat Caucus states that both caucuses support the adoption of UNDRIP, the Truth and Reconciliation Commission calls-to-action and the Supreme Court of Canada's Aboriginal title decision in Tsilhqot'in. Further, the Confidence and Supply Agreement provides that the parties will ensure the new government reviews policies, programs and legislation to determine how to implement the principles of UNDRIP in BC.

Now that Premier John Horgan and his cabinet have been sworn in, there are increased expectations of tangible actions on Aboriginal matters, including a call by First Nations Summit leaders in July 2017 for the NDP and Green caucuses to take immediate steps to fulfill its commitments under the NDP-Green agreement, including formal adoption of UNDRIP. The Honourable Scott Fraser was appointed as BC's Minister of Indigenous Relations and Reconciliation, and under his mandate letter, Minister Fraser has been tasked with (among other things):

  • Working collaboratively with First Nations to establish a clear vision of reconciliation to guide the adoption of UNDRIP, the Truth and Reconciliation Commission Calls to Action and the Tsilhqot'in decision.
  • In partnership with First Nations, transform the treaty process so it respects case law and UNDRIP.

UNDRIP & FPIC: Next Steps

As we have previously written, Canada's stated position on UNDRIP will not affect Canada's existing laws until UNDRIP is implemented. The extent to which Canadian law may be substantively impacted will depend on Canada's interpretation of UNDRIP and FPIC and the manner in which it carries out implementation. To date, there has been no indication that the federal government intends to implement UNDRIP as a standalone policy document or piece of legislation. Rather, the current approaches of the federal government to review its laws and policy with a view to implementing the principles of UNDRIP, where appropriate, seem to align with the earlier comments of the Justice Minister.

FPIC is a prominent feature of UNDRIP, referenced in Articles 10, 11(2), 19, 28(1), 29(2) and 32(2). As discussed above, the federal government continues to use terminology which suggests that consent will be the objective of consultation rather than an absolute requirement. The Discussion Paper states that engagement and partnership with Indigenous peoples is "seeking to achieve" FPIC and the 10 Principles appears to clearly set out the government's view that FPIC is an aim or objective of meaningful consultation, rather than a requirement amounting to a veto right. Even the Expert Panel Report suggests imposing a reasonableness requirement to any withholding of consent in an assessment process (although it does not elaborate what would constitute reasonableness in the circumstances).

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

Despite this potential limitation on FPIC, it is clear that the government intends to implement processes that allow for much deeper and more meaningful involvement by Indigenous peoples in decisions affecting their rights and traditional lands which will likely lead to greater government scrutiny of consultation and accommodation efforts by proponents. Please follow our blog as we continue tracking the implementation of UNDRIP principles in Canada.

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 Mondaq.com.

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

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 by clicking here .

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

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