On October 24, 2019, the BC Government introduced Bill 41 – Declaration on the Rights of Indigenous Peoples Act (the Declaration Act), which passed First Reading on the same day. This legislation, if passed, will mandate the Government to align provincial laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP or the Declaration) and will form the foundation for the Province’s work on reconciliation. The Declaration Act follows upon the Government’s commitment to make BC the first province in Canada to introduce legislation to implement UNDRIP, in co-development with the First Nations Leadership Council and other Indigenous organizations, as indicated in its 2019 Throne Speech. The BC NDP’s commitment to adopting UNDRIP was also a focus of its 2017 election campaign and formed a “foundational piece” of its 2017 Confidence and Supply Agreement with the BC Green Party caucus.
In the first of two news releases announcing the proposed Act, entitled “Indigenous human rights recognized in B.C. law with new legislation”, the Province highlights the legislation’s forward-looking approach towards reconciliation and upholding human rights, as well as the collaborative work that was undertaken with Indigenous peoples in developing the legislation.
The second news release, entitled “Reconciliation legislation fosters greater economic certainty”, states that the Declaration Act, if passed, will “move the Province forward with a clear action plan for reconciliation, supporting predictability and economic opportunities” and will “create greater transparency and predictability in its work together with Indigenous peoples.” The Province also states that the legislation aims to create further certainty for investment and opportunities for business while creating a strong inclusive economy.
Key Provisions of the Declaration Act
The three stated purposes of the Declaration Act are to (a) affirm the application of UNDRIP to the laws of BC; (b) contribute to the implementation of UNDRIP; and (c) support the affirmation of, and develop relationships with, Indigenous governing bodies.
A brief piece of legislation, the Declaration Act provides that:
- In consultation and cooperation with Indigenous peoples, the government “must take all measures necessary to ensure the laws of BC are consistent with the Declaration” (s. 3 – Measures to align laws with Declaration)
- The government “must prepare and implement an action plan to achieve the objectives of the Declaration” (s. 4 – Action Plan), and must prepare an annual report outlining its progress in implementing the action plan (s. 5 – Annual Report)
- The Act gives authority for the government, for the purposes of reconciliation, to enter into agreements with Indigenous governing bodies in relation to the exercise of a statutory power of decision (s. 6 – Agreements & s. 7 – Decision-making agreements)
- The government can also make regulations under the Act (s. 9 – Power to make regulations).
What does it mean for government to “take all measures necessary” to ensure laws are “consistent” with UNDRIP?
The language used in section 3 of the Declaration Act raises important questions as to how the Province’s success at implementing UNDRIP will be measured. First, the requirement to “take all measures necessary” is extremely broad and the Declaration Act does not clarify what measures would be considered sufficient to achieve the requirement of consistency of laws with UNDRIP. It imposes an arduous standard by lacking a ‘reasonableness’ component or other flexibility. This could potentially set up the government for failure and legal challenges with regard to the adequacy of its efforts at implementation. Second, the requirement for laws to be “consistent with” UNDRIP is not further described or defined. The proposed legislation does not set out any parameters for determining when and whether this requirement for “consistency” has been achieved, or by what and by whose standard.
Notably, other than substituting “British Columbia” for “Canada”, the language in section 3 of the Declaration Act is identical to the language in section 4 – Consistency of the federal Bill C-262. Bill C-262 sought to harmonize federal laws with UNDRIP but failed to pass the Senate in June 2019, mainly as a result of concerns over perceived deficiencies and uncertainties with its drafting, including with the potential unintended consequences of this broad language. We expect that similar questions will be raised as Bill 41 makes its way through the legislative process. (We note that the federal Liberal government has indicated that it intends to reintroduce similar legislation).
To some extent, the Province’s intentions with section 3 can be surmised from certain statements in its news releases introducing Bill 41, including that “[o]ver time, as provincial laws are modified or built, they will be aligned with” UNDRIP, and that “[e]xisting B.C. laws will not change immediately – bringing provincial laws into alignment with the UN Declaration will take time and will require consultation with Indigenous peoples and stakeholders including business, industry and local government.” While these comments do not resolve the issues of interpretation noted above, these statements suggest that progress towards implementing UNDRIP is intended to be incremental rather than immediate, and that current laws should not be deemed invalid if they are presently “inconsistent” with UNDRIP.
What is the significance of Agreements under the Declaration Act?
Bill 41 introduces the concept of agreements with Indigenous governing bodies as tools to achieve reconciliation and to fulfill the purposes of the Act. Section 6 – Agreements and section 7 – Decision-making agreements provide that the Lieutenant Governor in Council may authorize a member of the Executive Council, on behalf of the government, to negotiate and/or enter into an agreement with an Indigenous governing body, for the purposes of reconciliation, relating to one or both of:
- a statutory power of decision jointly by (i) the Indigenous governing body and (ii) the government or another decision maker
- the consent of the Indigenous governing body before the exercise of a statutory power of decision.
A “statutory power of decision” (as defined in the Judicial Review Procedure Act, RSBC 1996, c 241) is a power or right conferred by statute “to make a decision deciding or prescribing (a) the legal rights, powers, privileges, immunities, duties or liabilities of a person, or (b) the eligibility of a person to receive, or to continue to receive, a benefit or licence, whether or not the person is legally entitled to it, and includes the powers of the Provincial Court.”
The legislative intent of the agreements appears to be to provide a tool or mechanism for the government to work together with Indigenous groups on decision-making processes on matters that will affect them. This includes express contemplation of a negotiated consent requirement prior to a government decision. Theoretically, the subject matter of such agreements and their application under other statutes could be very broad. The only parameters appear to be that agreements are to be used “for the purposes of reconciliation” and must relate to statutory decisions that fall within the definition of “statutory power of decision” (e.g. decisions that will affect the rights and interests of Indigenous peoples).
Despite the potentially broad subject matter of the agreements, it is important to note that the entry into such agreements is discretionary. The Government explains that Bill 41 provides for discretion for new decision-making agreements between the Province and Indigenous governments “where decisions directly affect Indigenous peoples and mechanisms exist in applicable legislation – with clear processes, administrative fairness and transparency.” Further, the Province promotes the Declaration Act as a means of “supporting predictability and economic outcomes”, and “further certainty for investment”. Therefore it appears that the current government will want to use such agreements strategically, taking care to avoid undue disruption of current regulatory regimes. Notably, the new BC Environmental Assessment Act under Bill 51 (not yet in force), also contains provisions to enable government to enter into agreements with Indigenous nations for the purposes of conducting any aspect of an EA.
The Government acknowledges that Bill 41 is intended to carve out recognition for additional forms of Indigenous governments, including multiple Nations working together as a collective, as well as hereditary governments “as determined and recognized by the citizens of the Nation.” It states that this will “provide more clarity for businesses and communities about who to engage when working with Indigenous partners.”
To support transparency, Bill 41 sets out a process whereby once negotiations are authorized, the government must publish a summary of who will be consulted before or during the negotiation and entry into agreements. Agreements reached under the Declaration Act would be also required to be made public and published in the Gazette.
What is the effect on the interpretation of free, prior and informed consent?
The concept of free, prior and informed consent (FPIC) is a prominent feature of UNDRIP, referenced in Articles 10, 11(2), 19, 28(1), 29(2) and 32(2) in respect of various situations, including the requirement to obtain the FPIC of Indigenous groups prior to approving projects affecting Indigenous lands or territories, and in developing legislation that will affect Indigenous groups.
Bill 41 does not refer to the concept of FPIC and the Province has yet to define FPIC in any other piece of legislation. However, in the rollout of the new BC Environmental Assessment Act (not yet in force), the Province has made considerable efforts to articulate its position on FPIC in the context of environmental assessments. For example, it explains:
“Obtaining [FPIC] is an integral aspect of [UNDRIP]. The new EA process is designed to ensure that any decision taken on the question of consent by an Indigenous nation is free, prior and informed. Respectful of their own Indigenous laws, traditions and right of self-determination, a key objective of the new EA process is to create the opportunity for Indigenous nations to make a decision on consent. It is an objective that proponents, the Province and Indigenous nations should be working to achieve. The new EA process facilitates that objective throughout the process.
The EAO will work together and seek consensus with Indigenous nations at a technical level throughout the entirety of the EA process, and there will also be key decisions points where Indigenous nations may express their consent, lack of consent or abstain from deciding on behalf of their communities. It is hoped that in the majority of cases – by working together – it will be possible to reach consensus on major issues so that the decisions of Indigenous nations and the Ministers align. Dispute resolution may also assist in this process. Where decisions do not align, Ministers will be legally required to provide reasons.”
The new BC Environmental Assessment Act focuses on achieving consensus in decision-making and allowing Indigenous groups to communicate their consent or lack of consent at certain decision-points during the process. Dispute resolution processes are built in to assist where consensus is not achieved. Although ministerial discretion is maintained in respect of all final project approvals, the decision must take into account and provide reasons where consent has not been obtained.
This philosophy towards FPIC in the environmental assessment context could be extrapolated to the Province’s views on applying FPIC in other situations and under other legislation. Indeed, the new decision-making agreement tool under the Declaration Act signals how the Province may seek to achieve FPIC in certain situations through negotiated agreements.
As there are still many unanswered questions about the potential impacts and reach of this new and historic piece of proposed legislation, we will continue to monitor Bill 41 as it proceeds through the BC Legislature.
UNDRIP Declaration Act Aboriginal indigenous consent consensus