Authors: Sonia Eggerman, Jessica Buhler, Rangi Jeerakathil
On December 3, 2020, the Government of Canada introduced legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
In 2007, United Nations General Assembly adopted UNDRIP in order to affirm Indigenous peoples’ right to self-determination, cultural, economic and land rights, as well as free, prior and informed consent (FPIC) over state actions that affect Indigenous peoples. UNDRIP resulted from nearly 25 years of collaboration between United Nations member states and Indigenous groups. Indigenous leaders from Canada were significantly involved in negotiating and drafting UNDRIP. The Government of Canada initially voted against UNDRIP, but reversed course and formally endorsed UNDRIP on November 12, 2010. In 2016, the federal government committed to the full implementation of UNDRIP into Canadian law.
In 2018, efforts were made to implement UNDRIP in Canada. Member of Parliament Romeo Saganash introduced Bill C-262 in the House of Commons, but the Bill ultimately died on the order paper in the Senate before the 2019 federal election.
Significant debate in the House of Commons and Senate focused on the effect of implementing the standard of FPIC in Canada and how FPIC would co-exist with the current Canadian legal framework regarding the duty to consult. These issues will likely be at the forefront of the debates on Bill C-15.
The Government of Canada modelled Bill C-15 on the former Bill C‑262 and collaborated with a number of Indigenous groups, provincial and territorial governments, and industry stakeholders to develop the Bill.
Implications if Bill C-15 Becomes Law
- UNDRIP will be affirmed “as a universal international human rights instrument with application in Canadian law.”
- The Government of Canada will be required to take all necessary measures to ensure Canadian laws are consistent with the articles of UNDRIP.
- The Government of Canada, in consultation with Indigenous peoples, will have three years following the passage of Bill C-15 to develop and implement a national action plan to achieve the objectives of UNDRIP. The government will be required to publish annual reports on the preparation and implementation of the action plan.
- The passing of Bill C-15 will likely affect negotiations between Canada and Indigenous peoples across the country, and, in particular, influence discussions at the 80 active tables in Canada’s Recognition and Implementation of Indigenous Rights and Self-Determination program and the implementation of Indigenous jurisdiction over children, youth and families through An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24, which specifically identifies implementing UNDRIP as one of its purposes.
British Columbia’s DRIPA
British Columbia passed the Declaration on the Rights of Indigenous Peoples Act (DRIPA) in November 2019.
Bill C-15’s process for aligning Canada’s laws with UNDRIP is similar to the process in DRIPA. The B.C. government must take all necessary measures to ensure its laws are consistent with UNDRIP and must prepare and implement an action plan to achieve the objectives of the UN Declaration.
The B.C. government intends to review all existing laws to ensure that they align with UNDRIP. This review will be incremental, addressing specific statutes in tranches over a number of years.
DRIPA goes further than Bill C-15: it contains provisions that allow ministers to enter into agreements with Indigenous bodies to implement UNDRIP. DRIPA also allows the B.C. Cabinet to approve agreements to share statutory decision-making powers with Indigenous bodies or to delegate those powers to decision-makers agreed to by Indigenous bodies.
Before Bill C-15 can become law, the House of Commons and Senate must pass the bill and the Governor General must give royal assent. There are considerable questions about how this law will be implemented and further changes may be made to the text of Bill C-15 through the legislative process.
Our team of lawyers will continue to closely monitor the progress of Bill C-15. If you have questions regarding Bill C-15 and the effects of implementing UNDRIP in Canada, we invite you to contact one of the lawyers in our Indigenous practice group.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.