On October 24, 2019, British Columbia attracted international attention by introducing Bill 41 2019: the Declaration on the Rights of Indigenous Peoples Act for first reading in the legislature, and passing it unanimously at this initial stage. Described by Premier Horgan as "an important step toward true and lasting reconciliation", Bill 41 has already gained widespread support from many across the Province.
What does Bill 41 do?
Bill 41 affirms the application of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) to provincial law, seeks to contribute to the implementation of UNDRIP, and supports the affirmation of, and development of relationships with, Indigenous governing bodies.
In applying UNDRIP to provincial laws, Bill 41 would require the provincial government to consult and cooperate with Indigenous peoples in taking "all measures necessary" to ensure the consistency of provincial law with UNDRIP, while considering the diversity of Indigenous peoples in the province (including in relation to distinct languages, cultures, legal traditions, governance structures, relationship to territories, and more) in doing so.
Bill 41 contains three key tools: (i) an action plan, (ii) annual reporting, and (iii) agreements with Indigenous governing bodies.
The first tool – the action plan – must be prepared by the government, in consultation and cooperation with Indigenous peoples, and set out how the objectives of UNDRIP are to be achieved. On completion, such action plan must be set before the government, with specified dates to initiate its review. Due to the broad scope of UNDRIP, it is likely that the action plan will be multi-phased, and may result in the incorporation of different UNDRIP Articles in different manners in different contexts.
The second tool requires the Minister to prepare annual reports on the progress towards (i) implementing the measures it has taken to ensure consistency of provincial law with UNDRIP, and (ii) achieving the goals in the action plan.
Finally, the third tool incorporates a common feature seen in recent legislation, such as BC's new Environmental Assessment Act and the new federal Impact Assessment Act – namely, agreements with Indigenous peoples. In particular, Bill 41 empowers the Minister (on the authorization of provincial cabinet) to negotiate and enter into agreements with Indigenous governing bodies related to either (i) joint administrative decision-making by the Indigenous governing body and the government; or (ii) the consent of the Indigenous governing body before an administrative power is exercised.
Bill 41 closely mirrors the federal 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, which also contains provisions to table action plans and annual reports on the implementation of UNDRIP, and to work "in consultation and cooperation with Indigenous peoples" on ensuring the consistency of federal law with UNDRIP. The federal bill, which was proposed by the Hon. Romeo Saganash, was passed by the House of Commons but had not yet been passed by the Senate by the time the writ was dropped for the 2019 federal election. Before the recent federal election, however, Prime Minister Trudeau indicated that his government would attempt to implement UNDRIP if re-elected.
What provincial laws could be impacted?
UNDRIP has 46 articles, spanning a wide range of topics areas, including: self-determination, self-government, culture, religion, language, socioeconomic conditions, education, media, health, lands, resources, setting out the rights of Indigenous peoples in respect of these subjects and the role of the State in ensuring that these rights are protected and advanced.
The rights that these articles recognize do not, however, set the ceiling – rather, as recognized in Article 43, they "constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world."
An Indigenous Veto?
One of the most widely discussed provisions is Article 32, which recognizes the right of Indigenous peoples to "determine and develop priorities and strategies for the development or use of their lands or territories and other resources" and requires States to consult and cooperate in good faith with Indigenous peoples to obtain their free and informed consent, or "FPIC", prior to the approval of any project affecting their lands or territories and other resources.
There has been much ink spilled over whether the enactment of legislation that incorporates FPIC amounts to an Indigenous "veto" on development within their traditional territories.
It is too early to determine if and how a "veto" would apply and in which particular contexts. What is clear at this early stage of the bill is that a fundamental source for shaping the above-noted Bill 41 tools will continue to be Supreme Court of Canada guidance on consultation and Indigenous Title and Rights. Those tools could be the instruments for the creation of certainty that many parties - Indigenous, industry, and provincial/federal governments - seek.
Other Key UNDRIP Articles
Numerous other UNDRIP Articles have the potential to reshape the legislative environment in British Columbia, as will be determined through the application of the toolset provided under Bill 41. To illustrate but a few:
- Child and family services: Article 7.1(2) provides that Indigenous peoples are to be protected from forcible removal of their children to another group. Provincial laws are already moving in the direction of consulting with Indigenous communities and prioritizing cultural relationships in considering the best interests of the child. For example, BC has already amended its Child, Family, and Community Service Act to increase involvement of Indigenous communities in child welfare decisions and keep children connected to their communities.
- Ceremonial objects and human remains: Article 12 recognizes Indigenous peoples' rights to the use and control of their ceremonial objects, including rights to repatriation of ceremonial objects and human remains. This may have implications for laws such as the Heritage Conservation Act as well as project-specific "chance find" procedures, and corresponding management of, and claims to ceremonial objects and remains.
- Place names: Article 13 affirms Indigenous peoples' rights to designate and retain their own names for communities, places, and people. BC is already taking steps to comply with this article, including renaming places with Indigenous names across the Province – the Sea-to-Sky Highway between Vancouver and Whistler is a prime example, with Squamish place names showing on official signage throughout Squamish Territory.
- Consultation on laws: Article 19 obligates states to consult and cooperate with Indigenous peoples in order to obtain their FPIC before adopting or implementing legislative or administrative measures that may affect them. Notably, this has already begun, with BC working with First Nations and representative organizations on the adoption and implementation of a variety of laws, and continuing to further enshrine their participation in the legislative and administrative process.
- Socioeconomic rights: Article 21 enshrines the rights of Indigenous peoples to non-discriminatory improvement of a range of socio-economic conditions. Many Indigenous peoples across the Province live in worse socio-economic conditions that their non-Indigenous neighbours. How the Province incorporates Article 21 into provincial law will be an important testament to Bill 41's success in achieving the "true and lasting reconciliation" touted by the Premier.
- Spiritual relationships: Article 25 provides that "Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands." Notably, this was partly at issue in the recent Ktunaxa decision before the Supreme Court of Canada, which decided that s. 2(a) of the Charter, while it protected religious beliefs, could not protect the object of those beliefs – such as the Grizzly Bear Spirit, which inhabited the land at issue (which was proposed as a ski resort).
- Land claims: Articles 27 and 28 (i) obligate states to establish processes to adjudicate Indigenous rights pertaining to their prior occupation; and (ii) establish a right of redress regarding lands, territories and resources taken from without FPIC. In BC, the BC Treaty Process is underway to resolve outstanding issues, including claims to unextinguished rights to land. Indigenous groups also have the opportunity to seek redress for historical takings through the specific claims process. These processes have, however, been criticized as slow-going and Bill 41 may play an important role in addressing current challenges.
- Protected areas: Article 29 provides that "Indigenous peoples have the right to conservation and protection of the environment and the productive capacity of their lands and territories and resources." This could spur the creation and protection of more Indigenous protected areas in specific locations across the province.
Although the above provides a mere glimpse into the potential reach of Bill 41, it serves to illustrate the broad array of rights enshrined in UNDRIP that are engaged by the bill. Combined with similar efforts and tools proposed at the federal level, Bill 41 could help enhance certainty on projects and advance reconciliation with Indigenous peoples across the province.
Stayed tuned as we will continue to provide updates on Bill 41 as it is debated further and progresses towards law.
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