On October 24, 2019, British Columbia attracted international attention by introducing the long-awaited Bill 41 – the Declaration on the Rights of Indigenous Peoples Act – for first reading in the legislature. Described by Premier Horgan as "an important step toward true and lasting reconciliation", Bill 41 has already gained widespread support from Indigenous and industry leaders across the Province.
What does Bill 41 do?
Bill 41 affirms the application of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) to provincial law; seeks to contribute to the implementation of UNDRIP, and supports the affirmation of, and development of relationships with, Indigenous governing bodies.
In applying UNDRIP to provincial laws, Bill 41 would require the provincial government to consult and cooperate with Indigenous peoples in taking "all measures necessary" to ensure the consistency of provincial law with UNDRIP, while considering the diversity of Indigenous peoples in the province (including in relation to distinct languages, cultures, legal traditions, governance structures, relationship to territories, and more) in doing so.
Bill 41 contains three key tools: (i) an action plan, (ii) annual reporting, and (iii) agreements with Indigenous governing bodies.
The first tool – the action plan – must be prepared by the government, in consultation and cooperation with Indigenous peoples, and set out how the objectives of UNDRIP are to be achieved. On completion, such action plan must be set before the government, with specified dates to initiate its review.
The second tool requires the Minister to prepare annual reports on the progress towards (i) implementing the measures it has taken to ensure consistency of provincial law with UNDRIP, and (ii) achieving the goals in the action plan.
Finally, the third tool incorporates a common feature seen in recent legislation, such as BC's new Environmental Assessment Act and the new federal Impact Assessment Act – namely, agreements with Indigenous peoples. In particular, the Bill empowers the Minister (on the authorization of provincial cabinet) to negotiate and enter into agreements with Indigenous governing bodies related to either (i) joint administrative decision-making by the Indigenous governing body and the government; or (ii) the consent of the Indigenous governing body before an administrative power is exercised.
Bill 41 closely mirrors the federal Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, which also contains provisions to table action plans and annual reports on the implementation of UNDRIP, and to work "in consultation and cooperation with Indigenous peoples" on ensuring the consistency of federal law with UNDRIP. The federal bill, which was proposed by the Hon. Romeo Saganash, was passed by the House of Commons but had not yet been passed by the Senate by the time the writ was dropped for the 2019 federal election, and thus was never passed into law by the previous Parliament.
What provincial laws could be impacted?
UNDRIP has 46 articles, spanning a wide range of topics areas, including: self-determination, self-government, culture, religion, language, socioeconomic conditions, education, media, health, lands, resources, setting out the rights of Indigenous peoples in respect of these subjects and the role of the State in ensuring that these rights are protected and advanced.
The rights that these articles recognize do not, however, set the ceiling – rather, as recognized in Article 43, they "constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world."
An Indigenous Veto?
One of the most widely discussed provisions is Article 32, which recognizes the right of Indigenous peoples to "determine and develop priorities and strategies for the development or use of their lands or territories and other resources" and requires the State to consult and cooperate in good faith with Indigenous peoples through their own representative institutions in order to obtain their free and informed consent, or "FPIC", prior to the approval of any project affecting their lands or territories and other resources.
There has been much ink spilled over whether this incorporation of FPIC amounts to an Indigenous "veto" on development within their traditional territories. Naturally, the interpretation of this requirement to consult and cooperate in order to obtain Indigenous peoples' FPIC, and how it would be translated into law, is of great importance in a province such as BC which has a strong resource-based economy, with several pipeline, natural resource and other major infrastructure projects in place or actively being proposed or constructed.
Concurrently, however, Indigenous, industry and government leaders have consistently emphasized the importance and need for certainty, and formally incorporating Article 32 into provincial law may very well provide that result. As noted by Grand Chief Stewart Phillip, President, Union of BC Indian Chiefs:
Without recognizing Indigenous rights in B.C., there has been constant economic uncertainty. Where proponents have taken this responsibility on, such as with the development of Apex Ski Resort in my territory, business and Indigenous relationships have flourished, and the project has proceeded successfully. We are confident that this legislation is going to result in more opportunities for better outcomes . [emphasis added]
Accordingly, the concerns regarding an Indigenous veto may be misplaced; indeed, implementation of Article 32 may instead result in greater certainty for Indigenous Nations and industry alike, by making BC's laws more responsive to the social and legal realities of development, thereby benefiting the Province and all its residents as a whole.
Other Key UNDRIP Articles
Other UNDRIP Articles that have the potential to reshape the legislative environment in British Columbia (or already have) include, but are far from limited to, the following:
- Child and family services: Article 7.1(2) provides, among other things, that Indigenous peoples are to be protected from forcible removal of their children to another group. This has implications for the administration of child and family services, and child protection in particular. Provincial laws are already moving in the direction of consulting with Indigenous communities and prioritizing cultural relationships in considering the best interests of the child. For example, BC has already amended its Child, Family, and Community Service Act to increase involvement of Indigenous communities in child welfare decisions and keep children connected to their communities.
- Ceremonial objects and human remains: Article 12 recognizes Indigenous peoples' rights to the use and control of their ceremonial objects, including rights to repatriation of ceremonial objects and human remains. This may have implications for laws such as the Heritage Conservation Act and "chance find" procedures, which some Indigenous groups have found fail to adequately prioritize their claims to their ceremonial objects and remains.
- Place names: Article 13 affirms Indigenous peoples' rights to designate and retain their own names for communities, places, and people. BC is already taking steps to comply with this article, including renaming places with Indigenous names across the Province – the Sea-to-Sky Highway between Vancouver and Whistler is a prime example, with Squamish place names showing on official signage throughout Squamish Territory.
- Consultation on laws: Similar to Article 32 (above), Article 19 obligates states to consult and cooperate with Indigenous peoples in order to obtain their FPIC before adopting or implementing legislative or administrative measures that may affect them. Notably, this has already begun, with BC working with First Nations and representative organizations on the adoption and implementation of a variety of laws, and continuing to further enshrine their participation in the legislative and administrative process.
- Socioeconomic rights: Article 21 enshrines the rights of Indigenous peoples to non-discriminatory improvement of a range of socio-economic conditions. Many Indigenous peoples across the Province live in worse socio-economic conditions that their non-Indigenous neighbours. How the Province incorporates Article 21 into provincial law will be an important testament to Bill 41's success in achieving the "true and lasting reconciliation" touted by the Premier.
- Spiritual relationship with land: Article 25 provides that "Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands..." If translated into law, this could have some very interesting implications for the duty to consult in relation to projects occurring on Indigenous lands. Notably, this was partly at issue in the recent Ktunaxa decision in the Supreme Court of Canada, which decided that s. 2(a) of the Charter, while it protected religious beliefs, could not protect the object of those beliefs – such as the Grizzly Bear Spirit, which inhabited the land at issue (which was going to be developed as a ski resort).
- Land claims: Articles 27 and 28 (i) obligate states to establish and implement fair, impartial, and open processes to recognize adjudicate Indigenous rights pertaining to prior occupation and use of their lands, territories, and resources; and (ii) establish a right of redress for Indigenous peoples regarding lands, territories and resources taken from them without their FPIC. In a province such as BC, where the vast majority of the land is not subject to treaties, this is obviously of significant importance. There is already the BC Treaty Process underway to resolve outstanding issues, including claims to unextinguished rights to land. Indigenous groups also have the opportunity to seek redress for historical takings through the specific claims process and before the Specific Claims Tribunal (or before the courts). Canadian law recognizes the ability of Indigenous peoples to seek redress for takings of their lands, territories, and resources, as well as the role of the Aboriginal perspective in the process, including through oral history. However, the processes have been slow-going and have not always given "due recognition to indigenous peoples' laws, traditions, customs and land tenure systems", and Bill 41 may therefore play an important role in addressing current challenges.
- Protected areas: Article 29 provides that "Indigenous peoples have the right to conservation and protection of the environment and the productive capacity of their lands and territories and resources." This could result in the creation and protection of more Indigenous protected areas, similar to what the Tsilhqot'in Nation is accomplishing with their title lands that were recognized by the Supreme Court of Canada in 2014.
Although the above provides a mere glimpse into the potential reach of Bill 41, it serves to illustrate the broad array of rights enshrined in UNDRIP that are engaged by the Bill. Accordingly, Bill 41 has the potential to significantly reshape BC laws, and the Province itself, in a manner that leads the way towards true and lasting reconciliation with Indigenous peoples.