Canada: Implementing UNDRIP In Canada: Challenges With Bill C-262

Last Updated: January 9 2018
Article by Thomas Isaac and Arend J.A. Hoekstra

On December 5, 2017, Member of Parliament Romeo Saganash proposed that Bill C-262 be read a second time and referred to a committee. Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), is a private members bill, now supported by the Liberal government and the NDP, promoting the full adoption of UNDRIP into Canadian law.

Mechanics of Bill C-262

Bill C-262 is a reaction to the growing chorus of support for the implementation of UNDRIP within Canada. Though the mechanics of Bill C-262 are simple in design, that simplicity is problematic. UNDRIP is a blunt instrument, developed in an international setting, that is not reflective of Canada's world-leading legal protections for Indigenous rights; Canada is the only nation with an established system for limiting unilateral state action against Indigenous peoples. By simply adopting UNDRIP in its entirety into the Canadian context, Bill C-262 misconstrues Canada's existing and sophisticated Indigenous rights regime and, by adding new uncertainties, risks hindering the pursuit of reconciliation.

Uncertain Preamble Language

The preamble to Bill C-262 sets out the overall intention and objectives of the Bill. While the preamble refers repeatedly to UNDRIP, only one reference is made to section 35 of the Constitution Act, 1982 (s. 35), which is the constitutional source of Canada's protection of Aboriginal and treaty rights. No explanation is provided in the Bill on how the adoption of UNDRIP in the Canadian context will co-exist, modify, or alter existing Canadian law. The objective of Bill C-262 is similarly unclear, being first phrased as enshrining "the principles" of UNDRIP in Canadian law, and later describing a process of legislative, policy and administrative measures "to achieve the ends" of UNDRIP. There are no expressly stated "principles" within UNDRIP and the "ends" of UNDRIP are also unclear.

Extinguishment of Aboriginal and Treaty Rights

Subsection 2(1) of Bill C-262 states that the proposed Act does not "diminish or extinguish existing aboriginal or treaty rights" under s. 35. The phrasing is peculiar given that it appears to under-represent the substantial protections granted through s. 35 to Aboriginal and treaty rights in Canada, under which the Crown no longer has the ability to unilaterally extinguish Aboriginal and treaty rights.

Defining "Indigenous"

By referring to Indigenous rights within the context of UNDRIP, and Aboriginal and treaty rights within the context of s. 35, section 2(1) of Bill C-262 creates a larger uncertainty: is UNDRIP intended to apply to peoples other than the "aboriginal peoples of Canada" currently covered by s. 35? As recently noted in our publication in the Supreme Court Law Review,1 the Supreme Court of Canada (SCC) suggested in its 2016 decision of Daniels v Canada2  that the term "Indigenous" may apply to peoples who do not hold s. 35 rights.  In this context it is unclear whether UNDRIP is intended to apply to those Indigenous peoples holding s. 35 rights in Canada and non-s. 35 rights-bearing Indigenous peoples.

Discretion and Nuance

Section 3 of Bill C-262 states that UNDRIP is affirmed as an "international human rights instrument with application in Canadian law." This statement is followed by section 4 which obliges Canada to "take all measures necessary" to ensure its laws are consistent with UNDRIP. The standard of "all measures necessary" is broad and lacks the flexibility to abrogate or derogate from UNDRIP where direct application is impractical, illogical, or otherwise incompatible with Canada's constitutionally protected Indigenous rights regime.

Uncertain "Objectives"

Section 5 requires that Canada must implement an action plan to achieve the "objectives" of UNDRIP. A search through UNDRIP reveals no description of "objectives." Instead, UNDRIP provides 24 preambular statements and 46 articles, most of which are broadly phrased and none of which are referred to as "objectives" or "principles" (the word used in the preamble to Bill C-262).

Uncertain Results

Bill C-262 does not state what the actual intended outcome of the adoption of UNDRIP will be and how it will compare with those protections already existing under s. 35. Generally, it appears that the Bill is intended to expand the protection of Indigenous rights in Canada, however the specific intended outcomes, and the benchmarks used to determine whether implementation is successful, are not disclosed. As a consequence, Bill C-262 offers a "wait and see" approach to determining what the actual consequences of the Bill may be. Such an approach appears inconsistent with the basic expectations of government in a democratic society.  It also risks creating substantial uncertainty regarding the vast amount of existing law in Canada dealing with Aboriginal and treaty rights.

The drafting challenges within Bill C-262, noted above, are symptomatic of a larger issue: incorporating a deliberately general document (designed to address realities for Indigenous peoples throughout the world) into the sophisticated Canadian Indigenous rights regime using a broadly drafted and simplistic legislative tool.

UNDRIP into Canadian Law: The Need for a Nuanced Approach

The creation of UNDRIP, and the embrace of the principles therein, has been a critical international step forward for the recognition and protection of the rights of Indigenous peoples globally. In this context, UNDRIP provides an important benchmark in a world which has too often harmed, mistreated, and exploited Indigenous peoples.

While UNDRIP reflects critical elements of Indigenous rights through a lens of human rights, it was designed as a global benchmark and guide, rather than a specific legal instrument to be directly implemented as law. The fact that UNDRIP is a declaration and not a convention makes this clear. Conventions are binding agreements intended to be a reflection of international law and to be incorporated into national laws.  Declarations, in contrast, are statements of generally agreed-upon standards which are not themselves legally binding. UNDRIP was not negotiated or drafted to be a comprehensive, implementable, legal regime, and as such, in the Canadian context and the context of Bill C-262, it is inconsistent, deficient, and a potential hindrance to reconciliation.

Canada's Indigenous Rights Regime Overview

Indigenous rights are not new in Canada: through s. 35 and the general protections for human rights set out in the Canadian Charter of Rights and Freedoms, Canada has developed one of the world's most sophisticated legal regimes for protecting Aboriginal and treaty rights, including in its constraint of unilateral state action. This has been accomplished in large part through the effective efforts of Indigenous peoples themselves litigating in Canada's courts.  With a focus on reconciliation, the SCC has regularly constrained the exercise of Parliamentary authority for the purpose of protecting Indigenous rights ( as seen in the SCC's 2017 Peel River Watershed decision), while also allowing for necessary and unavoidable infringement of Indigenous interests where such interests conflict with broader, substantial social interests.

Section 35 and Reconciliation

In introducing Bill C-262 to a second reading, Mr. Saganash said that the Bill promises "to at least provide the basis or framework for reconciliation in our country," suggesting a new approach to Indigenous rights focused on reconciliation. Yet, reconciliation between Canada and its Indigenous peoples has been a constitutional principle in Canada for more than two decades. In 1996, SCC Chief Justice Lamer said s. 35 "provide[s] the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown." Significant progress on the road to reconciliation has been made in Canada in recent decades, and will continue through the pursuit of honest dialogue, transparency of process, and shared expectations.

Reconciliation is not a simple process.  According to the SCC, true reconciliation seeks to take into account Indigenous perspectives and the common law perspective, placing equal weight on each.4 Under Canada's existing Indigenous rights regime, the principle of reconciliation is used to constrain and limit government action when Indigenous interests may be impacted. However, the SCC has also used reconciliation as a vehicle for recognizing that at times, broader public interests will justify potential incursions on Indigenous rights. "[Since] distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community, over which the Crown is sovereign, there are circumstances in which, in order to pursue objectives of compelling and substantial importance to that community as a whole (taking into account the fact that aboriginal societies are a part of that community), some limitation of those rights will be justifiable [emphasis added]."5

UNDRIP does not use the word "reconciliation" and does not give specific consideration to how Indigenous and non-Indigenous peoples can respectfully coexist. The omission of any reference to "reconciliation" within UNDRIP appears intentional: in countries without constitutional constraints on the exercise of power, the protections for Indigenous rights under UNDRIP, even when enacted into law, are subject to governmental discretion. This is different from Canada's internationally unique legal regime, where the principle of reconciliation means that democratically elected governments are constrained from unjustified interference with Indigenous interests.

Free and Informed Prior Consent

Within the Canadian context, certain elements of UNDRIP appear inconsistent with our highly-tuned concept of reconciliation. The most significant of these elements is the concept of "free and informed prior consent." UNDRIP requires governments to obtain "free and informed consent" prior to developing any project affecting (not merely on) lands and territories of Indigenous peoples.6 All lands in Canada, from downtown Toronto, to the remote edges of the Arctic, are the traditional territories of one, and often more than one, Indigenous peoples. UNDRIP also requires that governments seek "free, prior and informed consent" before implementing legislative or administrative measures that may affect Indigenous peoples.7

UNDRIP's focus on free and prior informed consent appears to be generally unworkable in the Canadian context. While negotiation may be effective with a few Indigenous groups, larger projects such as pipelines may be unworkable where even a single Indigenous group objects. Similarly, requiring that any general legislation first receive the consent of Indigenous governments risks making Canada's democratic process unworkable and appears to be inconsistent with the general principles of Canadian federalism. Under the Constitution Act, 1867, governance powers were divided between federal and provincial governments. While courts have allowed both levels of government to regulate the same area, the SCC has been clear that conflicting regulation will be inoperative against the authorized government's regulations.8 Allowing Indigenous governments to veto (the effect of requiring the consent of all Indigenous peoples involved) laws and projects regulated by either the federal or provincial governments creates an overlap of authority unintended and incompatible with the principles of federalism developed over the past 150 years.

Interestingly, and suggestive of the global context in which UNDRIP was developed, while UNDRIP provides Indigenous peoples with a general veto power over legislation and economic activity, it provides only one justification for unapproved activities in Indigenous territories: military activities.9 Other than a requirement to undertake consultation, UNDRIP provides no constraint on the conduct of military activities in Indigenous territories.

Indigenous Rights and Human Rights

In introducing Bill C-262, Mr. Saganash discussed how the fundamental rights of Indigenous peoples are human rights. "This is the main objective of Bill C-262, to recognize that on one hand they [Indigenous rights] are human rights."10

In the Canadian context, describing Indigenous rights as human rights may not be helpful. Human rights, including those protected by the Canadian Charter of Rights and Freedoms, are the creation of, and may be derogated through, the democratic process enshrined in our Parliamentary system. Aboriginal rights are of a different kind, resulting not from our Parliamentary system but rather from the fact that "when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries [emphasis in original]."11 By failing to reflect the important distinction between Indigenous rights and human rights generally, UNDRIP appears, once again, to be a unsophisticated tool in comparison to the highly tuned Canadian Indigenous rights regime which has evolved over 25 years and through more than 70 decisions by the SCC.

Variety and Substance of Rights

Not all Indigenous rights, and impacts to rights, are equal. Within the Canadian context there exists Aboriginal rights (including Aboriginal title) and treaty rights. Oftentimes these rights will overlap, with multiple Indigenous peoples holding Aboriginal and treaty rights over a single area of land. The Canadian Indigenous rights regime has developed processes for prioritizing these rights as against government activity. This process ensures that appropriate protections are provided for Indigenous rights and that those most impacted are the greatest beneficiaries of any resulting accommodation measures.

UNDRIP does not contemplate overlapping rights, a variety of rights, or the degree such rights may be impacted by government action. This causes several challenges when contemplating the adoption of UNDRIP into Canadian law. First, UNDRIP provides veto powers unrelated to Indigenous rights: Indigenous consent is required whether or not a traditional right is impacted. This may require governments to provide the same degree of deference and accommodation to Indigenous governments with substantially different interests in a region, and may, as a consequence, inhibit Indigenous peoples from advancing their own economic interests on their traditional territories. Second, by disassociating the power to constrain government actions from the actual harm incurred, accommodation or other benefits obtained by Indigenous groups in exchange for the solicited consent are likely to be measured in relation to the benefits received by non-Indigenous persons, potentially undermining reconciliation by creating long-term ongoing conflict between the interests of Indigenous and non-Indigenous peoples.

Concerns with UNDRIP

Indigenous rights are a fundamental element of Canada's legal system. They have evolved to reflect First Nations, Inuit, and Métis, the history of this nation, and the reality of Crown sovereignty. In 1982 Canada enshrined the protection of Aboriginal and treaty rights within its Constitution, and in the years following, courts have, through many hundreds of judicial decisions, developed a legal regime intended to justly and effectively protect the rights of Indigenous peoples in a manner consistent with the principles of a free and democratic society.

UNDRIP should be embraced as a benchmark for enhancing global protections for Indigenous peoples. Within Canada, governments should consider the concepts of UNDRIP and the importance of Indigenous rights. However, by mandating the imposition of UNDRIP into the highly tuned Canadian Indigenous rights regime, Bill C-262, as it is currently drafted, risks introducing substantial uncertainty and further rhetoric into the Canadian Indigenous rights regime in the pursuit of opaque objectives.

The suggestion that Bill C-262 offers an avenue for reconciliation must be examined critically. "Reconciliation" has become le mot de jour for all Indigenous rights efforts. Reconciliation is more than creating goodwill or the implementation of government through consensus. Reconciliation requires truth, clarity, forthrightness, and predictability for Indigenous and non-Indigenous peoples alike. Reconciliation must help Indigenous and non-Indigenous peoples move forward, in confidence and with certainty, together towards a sustainable future. As presently drafted, Bill C-262 appears incapable of advancing the objectives it sets out to achieve. All peoples in Canada, Indigenous and non-Indigenous, should insist upon clear, precise, and nuanced approaches to legislation addressing such important and foundational matters to our country as reconciliation and the respect for Aboriginal and treaty rights.

Footnotes

1 Thomas Isaac and Arend Hoekstra, "Identity and Federalism: Understanding the Implications of Daniels v. Canada" (2017) 81 Sup Ct L Rev 27 [Identity and Federalism] at 35-36.

Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] SCJ No 12.

R v. Van der Peet, [1996] 2 SCR 507, 137 DLR (4th) 289 at para 31 [Vander de Peet].

Ibid at para 50.

R v. Gladstone, [1996] 2 SCR 723, 137 DLR (4th) 648 at para 73.

United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNGAOR, 107th plenary meeting (13 September 2007) [UNDRIP] at art 32.

Ibid, art 18.

Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 SCR 3 at para 4. 

9 UNDRIP, supra note 6 at art 30.

10 House of Commons Debates, 42nd Parl, 1st Sess, No 245 (5 December 2017) (Romeo Saganash).

11 Van der Peet, supra note 3 at para 30.

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
Thomas Isaac
Arend J.A. Hoekstra
Similar Articles
Relevancy Powered by MondaqAI
Bennett Jones LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Bennett Jones LLP
Related Articles
 
Related Video
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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