Written by Sharon Singh, David Bursey, Charlotte Teal and Radha Curpen
On October 24, 2019, the British Columbia (B.C.) government introduced Bill 41 – 2019, Declaration on the Rights of Indigenous Peoples Act, fulfilling its February 2019 announcement that it would table legislation implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The statement released by the Premier’s Office touted that the legislation:
“… will move the Province forward with a clear action plan for reconciliation, supporting predictability and economic opportunities, while respecting Indigenous human rights.”
Bill 41 was developed jointly between the B.C. government and the BC First Nations Leadership Council, and follows in the footsteps of a similar federal bill (Bill C-262), which passed in the House of Commons but died on the Order Paper in the Senate in June 2019.
Bill 41 requires the government, among other things, to take all necessary measures to ensure provincial laws are consistent with UNDRIP. The Bill also states that "Nothing in this Act is to be construed as delaying the application of the Declaration to the laws of British Columbia."
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 is a declaration, not a treaty or a convention. The text of UNDRIP makes clear 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 the declaration may be reflected in the laws that touch on the many subjects areas covered in UNDRIP.
Some of the articles in UNDRIP include:
- the right to freedom from any discrimination (Article 2);
- the right to self-determination and to freely determine political status and freely pursue economic, social and cultural development (Article 3);
- the right to self-government relating to internal and local affairs (Article 4);
- the rights to life, physical and mental integrity, liberty and security of person (Article 7); and
- that states must obtain free, prior and informed consent (FPIC) before adopting and implementing legislative or administrative measures that may affect Indigenous peoples (Article 19) and prior to approving any project affecting their lands or resources (Article 32).
The UNDRIP concept of FPIC applies to established Aboriginal rights and calls for "consulting and cooperating in good faith with Indigenous peoples … in order to obtain their free and informed prior consent". The concept does not contemplate a veto on decision-making, but a good faith effort to seek consent.
The question of how the FPIC concept will be incorporated into provincial law related to project development and land use attracts the most attention. The province’s answer to this question will have profound implications for business investment and project development in B.C.
Canada and B.C. have a well-established body of law governing how the Crown interacts and consults with Indigenous peoples in its decision-making. The province must reconcile its approach on FPIC so that any new measures truly advance reconciliation and do not unwind decades of advancement in this area of law.
The Bill: Main Elements
Bill 41’s stated purposes are three-fold:
- to affirm the application of the Declaration to the laws of B.C.;
- to contribute to the implementation of the Declaration; and
- to support the affirmation of, and develop relationships with, Indigenous governing bodies.
The Bill 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 B.C., particularly the distinct languages, cultures, customs, practices, rights, legal traditions, institutions, governance structures, relationships to territories and knowledge systems of the Indigenous peoples in B.C.;
- the government, in consultation and cooperation with the Indigenous peoples of B.C., 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 B.C., to report annually on the progress that has been made toward implementing the measures to ensure that the laws of B.C. are consistent with UNDRIP and achieving the goals set out in the action plan.
The combined effect of requiring the government to take all measures necessary (section 3) and proclaiming that nothing in the Act is to be construed as delaying the application of UNDRIP in provincial law, creates a practical and legal challenge. Bill 41 calls for swift action, yet the process to implement UNDRIP across the wide spectrum of subject areas it touches will be challenging and will necessarily take time. If the government fails to show immediate progress and manage expectations, it will invite legal action and a loss in goodwill amongst the parties.
A central feature of the Bill is that it permits the Provincial Cabinet or any authorized member of the Executive Council to enter into agreements with Indigenous governing bodies, relating to: (a) the exercise of a statutory power of decision jointly by the Indigenous governing body and the government or other decision maker, and/or (b) the consent of the Indigenous governing body before the exercise of a statutory power of decision. This concept differs from the federal Bill C-262 approach, and is remarkable in its scope.
"Indigenous governing body" means an entity that is authorized to act on behalf of Indigenous peoples that hold rights recognized and affirmed by section 35 of the Constitution Act, 1982
The provincial government will also need to address challenges associated with the broad definition on Indigenous governing body, including determining which entities—traditional or otherwise— within Indigenous communities are authorized to act on behalf of the holder of Aboriginal rights. The government has committed to working with Indigenous groups to address some of these questions.
Statutory decisions made under the terms of agreements under the UNDRIP legislation will be subject to judicial review.
The province has stated that it will follow an incremental approach and its initial focus will be to ensure that the province's environmental assessments and child welfare laws are consistent with UNDRIP.
The province also recently passed Bill 51 - the Environmental Assessment Act (Revitalized EAA), which requires consensus building with, and in certain circumstances, the consent of, Indigenous peoples. Therefore, no changes are expected to the Revitalized EAA.
If Bill 41 is enacted into law, it will be the first legislation of its kind in Canada. The Bill establishes a general framework for advancing reconciliation. The “clear” plan referenced by the Premier will take considerable work to develop.
The government has committed to further consulting with Indigenous groups, industry, and the community to implement the Bill. In the interim, numerous questions remain unanswered.
To advance reconciliation and to reduce uncertainty about the implications of Bill 41, the province must show strong leadership, including:
- Communicating regularly on the province’s plans to implement UNDRIP standards via Bill 41 so those affected by the changes can understand the implications. A particular area of concern is how FPIC will be applied in approval decisions on projects and activities that may affect aboriginal rights. The communications should include audiences outside of B.C., to demonstrate how the province will welcome investment in responsible development.
- Developing strong policies to guide government agencies that will be implementing the reconciliation measures. The province must be clear on the role of Crown agencies, Indigenous groups, and project developers on project approvals.
- Leading on identifying the appropriate Indigenous groups to consult, the nature and content of consultation, and who has authority to bind an Indigenous group to a decision.
- Coordinating the provincial approach with the federal approach to avoid creating conflicts.
- Allocating sufficient resources—administrative and information—to support government agencies, Indigenous groups and industry on any Bill 41 initiatives.
- Following an incremental approach to implementing the UNDRIP principles into provincial law to ensure the changes advance existing good work in this area.
The process to harmonize provincial laws with UNDRIP calls for collaboration and understanding the various interests that must be reconciled. Throughout the process, the Province must communicate, manage expectations and build confidence amongst Indigenous peoples, local communities, industry, investors and the broader public.