Written By Radha Curpen, David Bursey, Sharon Singh and Charlotte Teal

On November 20, 2017, the federal government announced that it will support Private Member’s Bill C-262, the United Nations Declaration on the Rights of Indigenous Peoples Act (Bill C-232, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, First Session, 42nd Parliament, 2015-2016). If passed, the Bill will “implement” the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canada, putting the government one step closer to fulfilling one of its prominent campaign promises to Indigenous peoples.

The Bill was introduced by NDP MP Romeo Saganash and received first reading on April 21, 2016. It establishes a legislative framework for national reconciliation, a central component of the Truth and Reconciliation Commission’s Calls to Action.

While the Bill signals government action on Indigenous rights, the scope and effect of the Bill remain unclear.  The use of a private member’s bill to introduce a potentially broad policy change is unusual since it follows a less rigorous legislative process.

UNDRIP

UNDRIP describes the rights of Indigenous peoples around the world, and offers guidance to governments on human rights of Indigenous peoples and how to recognize and promote those rights. UNDRIP was adopted by the General Assembly of the United Nations in September 2007.  While UNDRIP is not legally binding in Canada unless Canadian law recognizes it, it is often relied upon by Indigenous communities as another tool to have their rights recognized and protected.

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).

Key Provisions

The Bill requires:

• The government, in consultation and cooperation with Indigenous peoples in Canada, to take all measures to ensure that the laws of Canada are consistent with UNDRIP;
• The government, in consultation and cooperation with Indigenous peoples in Canada, to develop and implement a national action plan to achieve the objectives set out in UNDRIP; and
• The Minister of Indian Affairs and Norther Development to report annually to report to each House of Parliament on the above two points.

Our Thoughts

Although the government previously opposed the Bill, which they initially considered “unworkable” in Canadian law, its position is consistent with the government’s reconciliation efforts and policy. In May 2016, the federal government removed its objector status and announced that Canada is a full supporter, without qualification, of UNDRIP. While adoption of the Bill would place formal requirements on the federal government to implement UNDRIP, the government is already doing most of the same work.

The objectives and work described in the Bill are also consistent with Canada’s constitutional obligations to Indigenous peoples under section 35 of the Constitution Act, 1982. The Bill states: “nothing in this Act is to be construed so as to diminish or extinguish existing aboriginal or treaty rights of the Aboriginal peoples of Canada that are recognized and affirmed in section 35 of the Constitution Act, 1982.”

The government’s support of the Bill is symbolically important; but the Bill creates only general obligations on the federal government without explaining how UNDRIP will be implemented procedurally and substantially into Canadian law. The lack of clear policy around UNDRIP implementation focuses even more attention on an issues that already attract uncertainty and controversy, including amongst Indigenous communities. 

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