Policy Brief by Rayyan Esmail.
On December 3, 2020, the government tabled the United Nations Declaration of the Rights of Indigenous Peoples Act (“Bill C-15”) in the House of Commons . This is the latest step in a century-long struggle to bring international recognition of Indigenous rights to Canada.
Eight-four years after Haudenosaunee Chief Deskaheh brought a petition to the League of Nations asking for the protection of Haudenosaunee sovereignty against Canadian invasion, the Declaration on the Rights of Indigenous Peoples (“UNDRIP”) was adopted by the United Nations in September 2007 . It was the culmination of decades of work in consultation with Indigenous peoples across the world to have their rights internationally recognized.
Canada, however, was among the four nations voting against the resolution, along with Australia, New Zealand, and the United States . UNDRIP’s forty-six articles encompass a wide range of policy areas from health to economic development. The Canadian government expressed concerns over three particular articles. Articles 19, 26, and 28 were the initial sources of concern and will continue to be causes of uncertainty under Bill C-15 .
Article 19 outlines that states should obtain the “free, prior and informed consent” of Indigenous peoples “before adopting and implementing legislative or administrative measures that may affect them” . The government in 2007 was concerned the provision would require Indigenous consent on general policies that affect all Canadians . The requirement for consent is far more demanding than the duty to consult emerging from section 35(1) of the Constitution Act, 1982.
Article 26 recognizes the Indigenous right to “own, use, develop and control” their traditional lands, territories, and resources. Article 28 recognizes the right to redress confiscation of these territories . The government feared that Indigenous peoples would seek to re-open treaties on the basis of these articles .
After a qualified endorsement in 2010, Canada finally adopted the declaration in 2016 . That year, New Democratic Party MP Romeo Saganash introduced Bill C-262 to recognize the declaration. After being passed in the House of Commons in 2018, it died in the Senate when Parliament was dissolved for the 2019 election . British Columbia’s government introduced the Declaration of the Rights of Indigenous Peoples Act (“Bill 41”), which became law in 2019 . Taking guidance from both previous bills, Bill C-15 was introduced by Justice Minister David Lametti in December 2020 .
What's in Bill C-15?
Bill C-15, which may be amended in the Senate or Commons before receiving Royal Assent, has three main components. Firstly, the government is required to consult with Indigenous peoples to “take all measures necessary to ensure that the laws of Canada are consistent with the Declaration”. Second, it requires the government to create an action plan to achieve the Declaration’s objectives. Third, it requires an annual report tabled in Parliament on the status of implementing the first two components .
What Could Change?
If the provisions outlined above seem vague and noncommittal, that is because they are. While tremendous uncertainty exists about the impact of the bill, the one certainty is that there will be no instantaneously earth-shattering changes.
When the BC legislature passed Bill 41 into law, the government indicated that there would be no immediate changes. Instead, the Minister of Indigenous Relations and Reconciliation only spoke of a generational change in bringing BC laws in line with UNDRIP . Similarly, Canadian Indigenous Services Minister Miller said Bill C-15 is highly symbolic and wouldn’t change Canadian policies overnight . However, Indigenous leaders have spoken more concretely about the impact of Bill C-15. National Chief Perry Bellegarde of the Assembly of First Nations has said that the Bill will change the way Indigenous rights are treated and that First Nations should decide how UNDRIP is implemented in Canadian law .
Once this gap in rhetoric becomes a source of conflict, it will be hard to avoid the fact that the Government is bound by Bill C-15 to ensure that Canadian law is consistent with UNDRIP, including the articles they may not like. The bill does not directly incorporate UNDRIP into Canadian law, but its wording that UNDRIP has “application in Canadian law” invites courts and tribunals to use UNDRIP as an interpretive aid .
As disputes continue over resource projects that threaten Indigenous land and the government’s long history of ignoring treaty commitments and court orders, the articles that the Government rejected in 2007 may become sticking points once again. The words “free, prior and informed consent” are hard to reconcile with the Supreme Court’s rulings that the duty to consult “does not require that an agreement be reached, nor does it give Aboriginal peoples a veto” . It was the debate over what these words mean that stalled the previous UNDRIP bill in the Senate . As MPs and Senators prepare to debate these words again, another round of conflicting narratives of how the bill will change Canadian law may result in the question being decided not by Parliament or Indigenous peoples but in court.
Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, 2nd sess., 43rd Parliament, https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=11007812.
Jeff Corntassel, “Toward Sustainable Self-Determination: Rethinking the Contemporary Indigenous-Rights Discourse,” Alternatives 33, no. 1 (2008): 109-110.
“United Nations Declaration on the Rights of Indigenous Peoples,” United Nations, accessed February 25, 2020, https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html.
“Factbox: What is the Declaration of the Rights of Indigenous Peoples?” National Post, September 13, 2007, https://web.archive.org/web/20121102195634/http://www.canada.com/nationalpost/news/story.html?id=eec0b550-e95a-492b-8801-6ede20a2d35e.
“United Nations Declaration on the Rights of Indigenous Peoples,” United Nations, adopted by the General Assembly September 13, 2007, https://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.
“United Nations Declaration on the Rights of Indigenous Peoples.”
Tim Fontaine, “Canada officially adopts UN declaration on rights of Indigenous Peoples,” CBC News, May 10, 2016, https://www.cbc.ca/news/aboriginal/canada-adopting-implementing-un-rights-declaration-1.3575272.
Bill C-262, An Act to ensure that laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, 1st sess., 42nd Parliament, https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=8160636.
Declaration on the Rights of Indigenous Peoples Act, Statutes of British Columbia 2019, c. 44, https://www.canlii.org/en/bc/laws/stat/sbc-2019-c-44/161933/sbc-2019-c-44.html.
“Federal ministers and Indigenous leaders discuss UNDRIP implementation bill – December 3, 2020,” Cable Public Affairs Channel, December 3, 2020, https://www.youtube.com/watch?v=mcRdZn5B8qY.
“Official Report of Debates (Hansard),” Legislative Assembly of British Columbia, 4th sess., 41st Parliament, November 26, 2019, https://www.leg.bc.ca/content/hansard/41st4th/20191126pm-Hansard-n299.pdf.
“Passing law to implement UNDRIP will move First Nations closer to self-determination, Bellegarde says,” Globe and Mail, February 10, 2021, https://www.theglobeandmail.com/politics/article-passing-law-to-implement-undrip-will-move-first-nations-closer-to-self/.
Roy Millen, Sam Adkins, and Rochelle Collette, “Canada: Proposed Bill Affirms Application Of UNDRIP in Canadian Law,” Blakes, December 7, 2020, https://www.blakes.com/insights/bulletins/2020/proposed-bill-affirms-application-of-undrip-in-can.
Beth v. Moulton Contracting Ltd.  2 S.C.R. 227 at para. 29, 2013 SCC 26, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13038/index.do.
John Paul Tasker, “Senate committee passes UNDRIP bill, Tories warn of an Indigenous ‘veto’,” CBC News, June 11, 2019, https://www.cbc.ca/news/politics/senate-undrip-bill-tories-veto-1.5170618.