Canada: Federal Government Fulfills Promise To Introduce UNDRIP Legislation

On December 3, 2020, Minister David Lametti, the federal Minister of Justice, introduced Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples. The Bill follows on the Liberal Party of Canada's commitment to table legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) within the first year of a new mandate.

The Bill—a mere seven sections—is based on Private Member's Bill C-262, which passed in the House of Commons but died on the Order Paper in the Senate in June 2019. In summary, the Bill would require the federal government, in consultation and cooperation with Indigenous peoples, to:

• take all measures necessary to ensure the laws of Canada are consistent with UNDRIP;
• prepare and implement an action plan to achieve UNDRIP's objectives; and
• table an annual report on progress to align the laws of Canada and on the action plan.

This update:

• contains an overview of UNDRIP;
• discusses the Bill;
• summarizes the key similarities and differences between the Bill, its predecessor Bill C-262, and its provincial counterpart, the British Columbia Declaration on the Rights of Indigenous Peoples Act (DRIPA); and
• considers the implications of the Bill.

As with Bill C-262, the Bill leaves many unanswered questions; its introduction has significant implications. The federal government has also launched a new website on the Bill.

UNDRIP: A Brief Overview

UNDRIP consists of 46 articles that declare standards for the rights of Indigenous peoples around the world. UNDRIP was adopted by the General Assembly of the United Nations in September 2007. UNDRIP underlines Indigenous rights to protect their culture, identity, religion, language, health, education and community.

UNDRIP is a declaration, not a treaty or a convention.

The text of UNDRIP explains that it was proclaimed as "a standard of achievement to be pursued in a spirit of partnership and mutual respect". Accordingly, “implementing” UNDRIP requires extensive interpretation to determine how UNDRIP may be reflected in the laws that touch on the many subjects areas covered in UNDRIP and may change the course of government policy in those areas.

See our previous blog on UNDRIP,  British Columbia's UNDRIP Legislation—A Framework to Advance Reconciliation.

The Bill

The Bill builds upon Bill C-262's preamble with subtle and important inclusions, such as:

• Government of Canada's recognition that all relations with Indigenous peoples must be based on the recognition and implementation of the inherent right to self-determination, including the right of self-government;
• Government of Canada's commitment to exploring, in consultation and cooperation with Indigenous peoples, measures related to monitoring, oversight, recourse or remedy or other accountability measures that will contribute to the achievement of UNDRIP's objectives;
• Government of Canada's acknowledgment that provincial, territorial, and municipal governments each have the ability to establish their own approaches to contribute to the implementation of UNDRIP by taking various measures that fall within their authority; and
• affirming UNDRIP as a source for the interpretation of Canadian law.

In addition to the lengthy preamble, the Bill also:

• includes a purpose clause, stating that the purpose of the Bill is to affirm UNDRIP as a universal international human rights instrument with application in Canadian law and provide a framework for the federal government's implementation of UNDRIP;
• defines Indigenous Peoples of Canada, as having the meaning assigned by the aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982;
• restates section 35 of the Constitution Act, 1982's non-diminishment provision to construe the Bill as upholding the rights of the Indigenous peoples of Canada and not as abrogating or derogating from them; 
• requires the government, in consultation and cooperation with Indigenous peoples in Canada, to take all measures to ensure that the laws of Canada are consistent with UNDRIP;
• requires the government, in consultation and cooperation with Indigenous peoples in Canada (and with other federal ministers), to prepare and implement an action plan to achieve the objectives of UNDRIP; and
• requires the Minister to report annually to each House of Parliament on the measures necessary to ensure that the laws of Canada are consistent with UNDRIP and on the preparation and implementation of the action plan.

Unlike Bill C-262, the Bill stipulates what measures the action plan must include, namely measures:

• to address injustices, combat prejudice and eliminate all forms of violence and discrimination, including systemic discrimination, against Indigenous peoples and Indigenous elders, youth, children, women, men, persons with disabilities, and gender-diverse persons and two-spirit persons;
• to promote mutual respect and understanding as well as good relations, including through human rights education; 
• related to monitoring, oversight, recourse or remedy or other accountability measures with respect to the implementation of UNDRIP; and
• related to monitoring the implementation of the plan and reviewing and amending the plan.

The Bill requires preparation of the action plan to be completed as soon as practicable, but no later than three years after the day on which this section comes into force.

Similar to Bill C-262, the Bill does not elaborate on what implementation measures will look like and whether the government plans on implementing all aspects of UNDRIP, and does not clarify some of the ambiguous language contained in Bill C-262, including Article 2(3) of the Bill which states that nothing in the Bill is to be construed as delaying UNDRIP's application in Canadian law.

The annual report will be permanently referred to the committee of each House of Parliament that is designated or established to review matters relating to Indigenous peoples. After the report is tabled, the Minister must make it public.

The Bill and the DRIPA

The DRIPA contains some similar features to the Bill. For example, the DRIPA requires:

• the government to "take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration." It also states, "Nothing in this Act is to be construed as delaying the application of the Declaration to the laws of British Columbia";
• the government, when implementing the Act, to consider the diversity of the Indigenous peoples in British Columbia, particularly the distinct languages, cultures, customs, practises, rights, legal traditions, institutions, governance structures, relationships to territories and knowledge systems of the Indigenous peoples in British Columbia;
• the government, in consultation and cooperation with the Indigenous peoples of British Columbia, to prepare and implement an action plan to achieve the objectives of UNDRIP; and
• the Minister, in consultation and cooperation with the Indigenous peoples of British Columbia, to report annually on the progress that has been made toward implementing the measures to ensure that the laws of British Columbia are consistent with UNDRIP and achieving the goals set out in the action plan.

The chart below summarizes these differences:

The Federal Government's Communication Materials

Similar to British Columbia, the federal government has released communications materials including questions and answers.

In regards to:

• what is free, prior, and informed consent, which is often a source of contention and referenced throughout UNDRIP, the website states that "[f]ree, prior and informed consent is about working together in partnership and respect. It is not about Indigenous peoples having a veto over government decision-making. In many ways, it reflects the ideals behind the relationship with Indigenous peoples, by striving to achieve consensus as parties work together in good faith on decisions that impact Indigenous rights and interests. It is important to understand free, prior and informed consent in context: different initiatives will have different impacts on Indigenous peoples' rights. Free prior and informed consent may require different processes or new creative ways of working together to ensure meaningful and effective participation in decision-making"; 
• what the Bill means for the existing duty to consult, the website notes that "[o]nce passed by Parliament, this Bill would not change Canada's existing duty to consult Indigenous groups, or other consultation and participation requirements set out in other legislation like the new Impact Assessment Act. However, it would inform how the government approaches implementation of its legal duties going forward"; and 
• how the Bill affects provinces and territories, the website states that the Bill "only imposes obligations on the federal government...This Bill is an important source to interpret provincial and federal law. In fact, provincial and federal courts are already using UNDRIP in this regard." 

The website communications materials are not legally binding. Whilst they answer to some degree, questions raised during consultations with the federal government, they raise many more. 

Next Steps

For the Bill to become law, it must progress from the first reading to second reading, committee stage, report stage, third reading, consideration and passage by the Senate and finally Royal Assent. Changes to the Bill may occur during these stages, although we anticipate that such changes will not be substantial.

Implications

The Bill is meant to be enabling legislation but imposes important obligations on the federal government and clarifies UNDRIP's application under Canadian law. It will require the government to take further actions, including introducing new legislation or amending current legislation, to ensure that the laws of Canada are consistent with UNDRIP. In British Columbia, the government has described a similar legislative initiative as a generational exercise.

Despite the communication materials, there is insufficient information from the government regarding:

• how UNDRIP would inform the federal government's approaches to the implementation of its legal duties going forward;
• how to reconcile any difference between the rights and obligations under UNDRIP and the Constitutional rights, rights granted under human rights legislation, and rights under common law in existence today, including but not limited to, the rights protected by section 35 of the Constitution Act, 1982;
• whether the process to meet the free, prior and informed consent as set out in UNDRIP is the same as the duty to consult and the vast jurisprudence created as part of section 35 of the Constitution Act, 1982;
• the process by which the government will engage with stakeholders to develop the action plan, and to give effect to its commitments under the Bill; and
• the process to ensure that federal laws are consistent with UNDRIP.

The uncertainty on important aspects of the Bill and the government's intentions may hinder, rather than guide and assist engagement with Indigenous peoples, for example for infrastructure or resource projects. It may also deflect the issues to a later date—or to the courts. The discussion and debate in the parliamentary process that will follow may help to fill in the necessary context.

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.