Proposed Bill Affirms Application of UNDRIP In Canadian Law

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On December 3, 2020, the federal government introduced Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act (Bill C-15). If adopted, Bill C-15 would affirm the United Nations Declaration on the Rights of Indigenous Peoples (Declaration) as having application in Canadian law and provide a framework for Canada’s implementation of the Declaration.

Bill C-15 was developed with input from Indigenous nations and organizations and has been positively received by Indigenous communities. It is substantially similar to the previous Bill C-262 that died in the Senate prior to the last federal election (see our June 2018 Blakes Bulletin: Bill Backing UNDRIP Heads to Senate, Moves One Step Closer to Becoming Law in Canada). Its primary provisions are nearly identical to the equivalent provisions in British Columbia’s Declaration on the Rights of Indigenous Peoples Act (DRIPA), which was adopted in November 2019.

Bill C-15 creates a framework for implementation of the Declaration, but leaves virtually all of the details and the real legal impacts to be addressed in subsequent plans, reports and legislation. The ultimate outcomes of Bill C-15 will be largely dependent on those future actions. Nonetheless, Bill C-15 will create high expectations for many Indigenous communities and will likely have long-term impacts on federally regulated projects and industries across Canada.

WHAT DOES BILL C-15 DO?

The purpose of Bill C-15 is to affirm the application of the Declaration to the laws of Canada and to provide a framework for its implementation. It establishes legal mechanisms to achieve this purpose:

  1. The federal government must, in consultation and cooperation with Indigenous peoples in Canada, take all measures necessary to ensure that Canadian laws are consistent with the Declaration.

  2. The federal government must develop and implement a national action plan to achieve the objectives of the Declaration, again in consultation and cooperation with Indigenous peoples.

  3. The designated minister must prepare an annual report, in consultation and cooperation with Indigenous peoples, on the measures taken to implement the Declaration and to implement the action plan.

This structure is identical to DRIPA. However, a few differences are notable. Unlike DRIPA, Bill C-15 does not include a mechanism for government to enter into joint decision-making agreements with Indigenous governments and does not include the power to make regulations. In addition, Bill C-15 includes a lengthy preamble that provides further insight to the purpose of the legislation. For example, the preamble expressly recognizes “the right of self-government” and affirms the Declaration “as a source for the interpretation of Canadian law.”

COMPARISON AND DISCUSSION

In our October 2019 Blakes Bulletin: B.C.’s UNDRIP Legislation Facilitates Reconciliation but Leaves Unanswered Questions, we noted that the brevity of DRIPA left many questions unanswered. Similar concerns arise with respect to Bill C-15. However, the B.C. experience provides some insight into the process which may follow, and some comparisons for discussion.

  • In British Columbia, the Legislature debated and discussed every section and phrase of the proposed legislation. Those discussions were a wise investment of time as they have and will continue to provide clarity for courts and future generations regarding the intent and purposes behind B.C.’s legislation. It is unclear if the House of Commons or Senate will engage in this same “line by line” process. In our view, a healthy debate and discussion on these topics will be important to ensure the federal legislation, if passed, is properly interpreted and applied by regulators, courts and the many businesses and Indigenous peoples affected by the legislation.

  • The federal government has not yet made clear its intent regarding the short-term impact of Bill C-15. The B.C. government went to great lengths to clarify that DRIPA does not grant Indigenous communities a veto and did not amend provincial legislation. In announcing the bill, federal Justice Minister David Lametti advised the media that “[t]he word veto does not exist in the document.” B.C.’s formal clarification documents provided some comfort to the business community, and we expect further questions will be asked of the federal government.

  • The federal government has been clear that if passed, Bill C-15 will serve as an interpretive aid for regulators, tribunals and courts. This is largely an endorsement of the experience in British Columbia, where arguments regarding the role of the Declaration as an interpretive tool are increasing in regularity. Although there have not yet been any definitive judicial determinations regarding the implications of DRIPA, eventually Canadian courts will need to grapple with interpreting DRIPA, Canada’s commitment to implement the Declaration, and reconciling that commitment with Canada’s existing constitutional framework.

    • The federal government has given itself three years to develop an action plan to implement the Declaration. It remains unclear how Canada intends to develop that plan in collaboration and consultation with Indigenous communities, which number over 600 across Canada, along with regional and national organizations, and can have disparate views.

    • As we noted in our October 2019 Blakes Bulletin, territorial overlaps among Indigenous peoples are a longstanding issue across Canada. The larger or longer a project, the more challenging it becomes to secure consent from every interested Indigenous community. Neither Bill C-15 nor the Declaration address this challenge. Put bluntly, how will federal regulators implement the Declaration in the face of conflicting support and opposition from different Indigenous peoples for any given project?

LOOKING FORWARD

The introduction of Bill C-15 was widely expected, since the federal government had previously indicated it would propose a bill to implement the Declaration. Bill C-15 complements legislative changes to expand recognition of Indigenous rights, such as the Impact Assessment Act and the Fisheries Act, and federal policy changes like the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples and the Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples.

The goals of these changes, to facilitate the enhancement of Indigenous peoples’ socio-economic position and improve relationships with Indigenous peoples, are laudable. However, the high-level nature of these legislative and policy changes will leave much to interpretation and does not provide any near-term certainty for Indigenous communities, industry or regulators. This is particularly the case in the resource sector, where balancing legal protections for Indigenous rights with the broader public interest in resource development is frequently tested. It remains to be seen whether debates in the House of Commons or Senate will further refine Bill C-15, or whether the federal government will issue clear guidance on the immediate impact of the legislation to address divergent expectations on natural resource development. This will require careful management by the federal government, particularly given the strong objections to Bill C-15 from several provinces.

That said, Bill C-15 is aimed at far more than resource development and land use. The preamble to the legislation denounces racism, rejects all forms of colonialism, and notes that “concrete measures to address injustices, combat prejudice and eliminate all forms of violence and discrimination” are required. In announcing the legislation, the federal government highlighted recent legislative changes to preserve Indigenous languages, and to provide Indigenous communities with greater control over education, child and family services. These measures have been underway for some time and are focused on closing the socio-economic gap between Indigenous and non-Indigenous communities. From this perspective, Bill C-15 reflects another step in the government’s objective to accelerate the broader reconciliation process among Indigenous peoples and all Canadians.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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