Today, the federal government introduced in Parliament Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act. This blog provides some background on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the new federal bill.
The United Nations Declaration on the Rights of Indigenous Peoples
UNDRIP was passed by the UN General Assembly in 2007.1 UNDRIP contains 46 articles addressing the rights of Indigenous peoples in relation to their culture, self-government, human rights, lands and resources. For example, Article 2 provides, in part:
Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination...
A key element of UNDRIP (and arguably the most controversial) is the principle of free, prior and informed consent (FPIC). For example, Article 32(2) of UNDRIP provides that:
States shall 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
[emphasis added]
Canada initially voted against UNDRIP in 2007 based on concerns that a requirement for FPIC may be inconsistent with Canadian law regarding the Crown's duty to consult and accommodate Indigenous peoples. Canada subsequently endorsed UNDRIP on the understanding that it could be implemented in a manner consisted with the Canadian Constitution. In 2015, the federal Liberal government committed to implement UNDRIP—a commitment that has been repeated in a number of Throne Speeches. Bill C-15 is intended to fulfill that commitment.2
Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act
Bill C-15 is a short bill, with only seven provisions. Only two of those provisions will, if Bill C-15 is passed by Parliament, 3 impose obligations on the federal government. Bill C-15 will obligate the federal government to "take all measures necessary to ensure that the laws of Canada are consistent with the Declaration". Bill C-15 does not specify what those measures are or who will determine their necessity or sufficiency. Bill C-15 will also require the federal government to prepare, within three years of its coming into force, an "action plan to achieve the objectives" of UNDRIP. Bill C-15 states that the action plan must include measures to address injustices, combat prejudice and eliminate all forms of violence and discrimination, measures to promote mutual respect and understanding, and measures related to monitoring, oversight, recourse or remedy or other accountability measures with respect to implementation of UNDRIP. However, as UNDRIP does not contain provisions that are identified as "objectives", it is unclear what else the action plan must address.
For such a short bill, it is notable that Bill C-15 contains a three page preamble. Preambles, where included in a federal statute, are intended to "assist in explaining its purport and object."4 While most of the preamble provides the historical and current context for the implementation of UNDRIP in Canada, the preamble also affirms UNDRIP "as a source for the interpretation of Canadian law." The preamble also suggests that the action plan mandated under Bill C-15 will be limited to the federal sphere, recognizing that provincial, territorial and municipal governments have the ability to establish their own approaches to contributing to the implementation of UNDRIP.
The enactment of Bill C-15 will not, on its own, change federal laws or decision-making processes. If Bill C-15 does make it through Parliament, the development of the action plan required by the Bill will be the next focus of attention as the federal government proceeds with the implementation of UNDRIP.
We will be tracking the progress of Bill C-15 through Parliament and will provide updates in future posts.
Footnotes
1. General Assembly Resolution 61/295, adopted on 13 September 2007. The full text of the Declaration is available here: https://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf
2. https://www.canada.ca/en/department-justice/news/2020/12/government-of-canada-introduces-legislation-respecting-the-united-nations-declaration-on-the-rights-of-indigenous-peoples.html
3. A previous bill in Parliament was passed by the House of Commons but died on the order paper when Parliament was dissolved for the 2019 federal election.
4. Interpretation Act, RSC 1985, c. I-21, s. 13.
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