In February 2018, we suggested that the Canadian government may be inching towards the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) with their new draft environmental legislation (see our February 2018 Blakes Bulletin: Implementing UNDRIP? Federal Government Releases Draft Environmental Legislation). The pace seems to have sped up since then, at least for the time being.

Bill C-262 recently passed third reading in the Canadian House of Commons and is now heading to the Senate. Bill C-262 looks to legally adopt UNDRIP. If passed, Canada will become one of only a small number of countries to adopt UNDRIP into its domestic law.

If Bill C-262 becomes law, it will officially be known as the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIP Act).

WHAT DOES BILL C-262 DO?

Bill C-262 itself is short; although it attaches as a Schedule the full version of UNDRIP that was passed by the United Nations General Assembly in 2007.

Bill C-262 affirms UNDRIP as a universal international human rights instrument, with application in Canadian law. While the federal government previously promised to implement UNDRIP from a policy perspective, the UNDRIP Act is the first instrument to legally attempt to do so.

The Bill establishes legal mechanisms to achieve this purpose:

  1. The federal government must, in consultation and cooperation with Indigenous peoples in Canada, take all measures necessary to ensure that Canadian laws are consistent with UNDRIP
  2. The federal government must develop and implement a national action plan to achieve the objectives of UNDRIP, again in consultation and cooperation with Indigenous peoples
  3. The Minister of Indian Affairs and Northern Development has to submit a report by May 31 of each year, until 2037, on the implementation of each of the legislative measures and national action plan required under Bill C-262.

From an interpretative perspective, Bill C-262 provides that nothing in the UNDRIP Act is to be interpreted as diminishing or extinguishing existing aboriginal rights that are protected under section 35 of Canada’s Constitution Act, 1982. It also provides that nothing in the UNDRIP Act is to be construed as delaying the application of UNDRIP in Canadian law.

WHAT’S MISSING?

The most significant thing missing is what UNDRIP means in a Canadian context. While much of UNDRIP isn’t controversial, there are provisions, such as those addressing “free, prior and informed consent”, where there are material disagreements over what UNDRIP means, and will require further guidance and clarification.

This issue was raised during the House of Commons process, but the House Standing Committee, which was asked to study Bill C-262 in detail, elected to return it to the House without any recommended amendments.

Another significant issue that Bill C-262 doesn’t address is timing. While Bill C-262 expressly acknowledges that implementation will take time, it doesn’t specify how long or establish any targets.

NEXT STEPS

Bill C-262 still needs to go through the Senate, which has the option of passing it, amending it or rejecting it. In the absence of any amendments during this process, the meaning — and timing — of UNDRIP will remain undefined in the legislation. While this will maintain some flexibility for the federal government in realizing on its commitment to implement UNDRIP, it also risks leaving to the courts the ultimate task of interpreting UNDRIP and reconciling it with Canada’s existing constitutional framework.

It should also be noted that Bill C-262 is only one part of a broader set of proposed legislative and policy changes related to UNDRIP in Canada. While the federal government has not fully articulated its plan for implementing UNDRIP, it has clearly articulated that it will take an incremental approach using a “multiplicity of tools – including legislation, policy and agreements” (see the speech of Justice Minister Jody Wilson-Raybould to the B.C. Business Council on April 13, 2018, available here).

Bill C-262 received first reading in the Senate on May 31, 2018. Given the Senate’s schedule, it is unlikely that Bill C-262 will make it through the Senate process until sometime in the fall.