On Tuesday May 10, 2016, Canadian Indigenous Affairs Minister, Carolyn Bennett, announced that the Government of Canada would remove its permanent objector status to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
UNDRIP was adopted by the UN General Assembly in 2007, after almost 25 years of negotiations between 148 member states and various Indigenous representatives from around the world. UNDRIP is intended to enshrine and protect the existing collective and individual rights of Indigenous peoples, including their rights to self-determination, to determine their political status and organization, to autonomy and self-government, and to their lands, territories and resources.
Although Canada actively participated in the negotiation of UNDRIP, it did not vote in favour of UNDRIP in 2007. Canada was among only four nations to not support UNDRIP and remained in opposition until 2010. However, Canada’s statement in support of UNDRIP in 2010 was qualified by objections on the provisions dealing with land, territories and resources, as well as the concept of “free, prior and informed consent”. Canada’s decision to now fully support UNDRIP reflects a significant change in federal approach, and will have domestic implications, especially on major resource development projects.
Canada’s Adoption and Implementation of UNDRIP
Minister Bennett indicated that the government intends to fully adopt and implement UNDRIP in Canada in accordance with the Canadian Constitution. The federal government may introduce legislation to adopt and implement UNDRIP into Canadian domestic law as early as autumn 2016. It is unclear exactly what the federal scheme for implementation of UNDRIP will look like, but Minister Bennett’s statement included the following:
- The government intends to fully adopt and implement UNDRIP through section 35 of the Constitution Act, 1982, which recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada. Minister Bennett stated that the implementation of UNDRIP would breathe life into section 35 as a “full box of rights for Indigenous Peoples in Canada”.
- The changes needed to bring Canadian laws and policies in line with UNDRIP will require consultation with First Nations, Inuit and Métis peoples. The Minister stated that a recent private member’s bill introduced in Parliament by NDP MP Romeo Saganash, calling for the implementation of UNDRIP in Canada, did not meet the Constitutional requirements of consultation.
- The government’s change in position is putting the resource sector “on notice” that it needs to seek “free, prior and informed consent” before beginning projects that may have impacts on Indigenous lands.
We anticipate that much of the discussion around the federal government’s domestic implementation efforts will focus on three major issues that our courts have already begun to address in existing case law:
- How will “free, prior and informed consent” be applied in the Canadian legal context? Does it amount to an Aboriginal veto over unwelcome or unsustainable development, or is it simply an obligation to “seek” consent of Aboriginal group?
- Will domestic implementation require a certain strength of claim or degree of proof of Aboriginal interests, or will the mere assertion of an Aboriginal interest be sufficient to engage the free, prior and informed consent requirements?
- How will the concept of free, prior and informed consent be applied in areas like British Columbia, where large lineal projects (such as pipelines) and overlapping territories create situations where more than one Aboriginal group is often affected? For example, if all but one Aboriginal group was to support a project like TransMountain or Northern Gateway, does the sole objecting group have an ability to stop the project despite the support of its similarly impacted neighbours?
These questions, and others, will need to be answered for Canada to successfully implement UNDRIP. While the answers may not be clear at this time, what is clear is that developing the answers cannot be done by the federal government alone – Canada’s Aboriginal people have an important role to play in shaping this new relationship.
So far, Canada has recognized the need for collaboration: on May 9, 2016, Canadian Justice Minister and Attorney General of Canada Jody Wilson-Raybould emphasized the need for Canada’s Indigenous Nations to play a role in implementing the required changes to Canadian laws through a nation-to-nation approach that respects different legal traditions. Only time will tell how that process unfolds, and we will continue to provide updates as Canada’s domestic implementation of UNDRIP progresses.
 We are not suggesting that this level of support for these projects is likely in the foreseeable future.