Written by Charlotte Teal, Sharon G.K. Singh, David Bursey and Radha D. Curpen

On February 14, 2018, the federal government announced a new framework, including new legislation, to recognize and implement Indigenous rights (the “Framework”) in support of its commitment towards reconciliation with Indigenous peoples. The announcement follows the federal government’s endorsement of the United Nations Declaration of Indigenous Peoples (UNDRIP) and its support of Bill C 262, the United Nations Declaration on the Rights of Indigenous Peoples Act.

While symbolically significant, the Framework currently lacks detail beyond its stated objective of renewing the relationship between the government and Indigenous peoples and providing greater self-governance rights to Indigenous peoples. The Framework’s content will be developed in the coming months through engagement with Indigenous peoples, all levels of government, industry, area matter experts, and the general public.

The federal government plans to implement the legislation before October 2019.

Anticipated Elements of the Framework

The Framework is expected to focus on establishing new mechanisms to implement Indigenous rights outside courtrooms, including creating:

• measures focused on self-determination and self-governance;
• measures aimed at tackling specific issues such as overcrowded housing, unsafe drinking water, and high rates of suicide among Indigenous youth; and
• two new departments, the creation of which have been underway since August 2017 when the federal government announced the split of Indigenous and Northern Affairs Canada into Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs.

With the Framework’s focus on “renewing” the relationship between government and Indigenous peoples, the issue of consultation will inevitably arise. While the duty to consult lies with the Crown, elements of the consultation process are often delegated to project proponents. It would be helpful if the Framework offers a clearer and more accountable consultation process.

In addition, while the February 14 announcement did not specifically state how the Framework will incorporate either the federal government's Principles Respecting the Government of Canada's Relationship with Indigenous Peoples (the "10 Principles") or UNDRIP, we expect the Framework will align with the 10 Principles, some of which mirror the Framework’s objectives.

One of the 10 Principles is that “[m]eaningful engagement with Indigenous peoples aims to secure their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights on their lands, territories, and resources.” The extent to which UNDRIP, and FPIC in particular, will form part of the Framework will be indicative of how far-reaching a reform the government intends the Framework to be.

Next Steps

Engagement on the Framework is underway and is focusing on:

• accelerating progress toward self-determination, with a focus on nation and government rebuilding and rights recognition;
• legislation to anchor Canada's relationship with Indigenous peoples in rights recognition and develop tools for the recognition of Indigenous governments
• elements of a new policy, based on the distinct needs of First Nations, Inuit and Métis to replace the current Comprehensive Land Claims and Inherent Right to Self-Government policies; and
• creating two new departments (Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs) that can better serve the distinct needs of First Nations, Inuit and Métis.

Interested parties can participate by sending an email to droitsautochtones-indigenousrights@canada.ca, writing a letter to Indigenous and Northern Affairs Canada, attending an in-person engagement session (by invitation only) and through social media platforms.

Implications

The Framework will be the foundation that will define the relationship between Indigenous peoples, governments and project proponents. It could deliver a clear pathway for the Crown to satisfy its duty to consult and, where required, accommodate Indigenous peoples, which could help decrease the number of cases before the courts that allege insufficient consultation.

If done well, the Framework could offer greater guidance and certainty in how Indigenous rights are reconciled in government decision-making affecting Indigenous peoples. However, until the Framework’s details are settled, the uncertainty will continue and the expectations of all parties will remain high.