This post was updated on May 26th, 2016.
On May 10, 2016, the federal Minister of Indigenous and Northern Affairs, Hon. Carolyn Bennett, announced Canada’s latest position statement on the United Nation Declaration on the Rights of Indigenous Peoples (the Declaration). The announcement came on the second day of the United Nations Permanent Forum on Indigenous Issues, 15th Session, being held in New York until May 20th.
Minister Bennett confirmed that Canada is now a full supporter of the Declaration, without qualification, and that Canada intends to adopt and implement the Declaration in accordance with the Canadian Constitution. Other highlights of Minister Bennett’s address include reference to Section 35 of the Constitution and the principle of “free, prior and informed consent” (FPIC) in the Declaration:
- Through Section 35 of the Constitution Act, 1982, Canada has a robust framework for the protection of Indigenous rights. By adopting and implementing the Declaration, Canada is breathing life into it, and recognizing it as a full box of rights for Indigenous peoples.
- Canada believes that its constitutional obligations serve to fulfill the principles of the Declaration, including FPIC. Canada sees modern treaties and self-government agreements as the ultimate expression of FPIC among partners.
- Canada’s support for the Declaration means nothing less than a full engagement on how to move forward with adoption and implementation, done in full partnership with First Nations, the Métis Nation and Inuit Peoples, as well as including Canada’s provinces and territories.
The text from Minister Bennett’s speech has been posted by Northern Public Affairs Magazine. A summary of Minister Bennett’s remarks from the UN are available here, and the federal government’s news release is available here.
Minister Bennett’s announcement represents a marked shift in Canada’s official position since the UN General Assembly adopted the Declaration in 2007. Canada initially voted against the Declaration, along with the United States, New Zealand and Australia. Canada subsequently issued a qualified statement of support for it in 2010, referring to it as an aspirational but non-legally binding document. Australia, New Zealand and the United States have also since endorsed the Declaration but each stated at the time of endorsement that it is not legally binding.
Canada’s past position was based mainly on concerns with the broadly worded provisions in the Declaration related to lands, territories and resources, and a concern that the principle of FPIC in several principles could be interpreted as a veto right against government actions or decision-making affecting Aboriginal groups’ traditional lands. The Declaration requires states to seek the FPIC of Aboriginal groups in several instances, including for the approval of any projects affecting Aboriginal lands or territories. It also provides a right of redress for lands, territories, and resources that have been confiscated, taken, occupied, used or damaged without the FPIC of the affected Aboriginal group(s).
The content of Canada’s new position statement is not unexpected. The federal Liberal government has on previous occasions announced its intention to implement the Declaration, including as part of its election platform and in the Prime Minister’s Ministerial Mandate Letter to Minister Bennett. At the provincial level, Alberta was the first to commit to implementing the Declaration in July 2015, when Premier Rachel Notley issued a mandate letter to her eleven Cabinet Ministers asking them to conduct a review of their Ministry’s policies, programs and legislation (including budget implications) with a view to developing a plan on how to implement the Declaration. However, the Alberta government has not yet publicly announced how it will implement the Declaration.
On a related note, NDP Member of Parliament, Romeo Saganash, introduced a private member’s bill on April 21, 2016 that, if passed, would require Canadian laws to be harmonized with the principles of the Declaration. 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 – is currently undergoing its first reading in the House of Commons and is substantially similar to a bill introduced by Saganash in the previous session of Parliament.
Canada’s approach to implementation and FPIC
It is important to underscore that the removal of Canada’s objector status will not affect existing Canadian law until the provisions of the Declaration are implemented by the federal government. It will also not impact provincial or territorial government decision-making unless and until these governments take steps to implement the Declaration within their respective jurisdictions. Even then, the extent to which Canadian law may be substantively impacted will depend on Canada’s interpretation of the Declaration and manner in which it decides to carry out implementation.
The approach that the federal government will ultimately take in terms of implementation measures remains to be seen – whether it be through amendments to existing legislation, creation of new legislation, or through policy statements or other measures. The manner in which the federal government implements the FPIC provisions of the Declaration will likely be one of the issues that is most closely watched issues by both Aboriginal groups and industry.
In addition to the highlights of Minister Bennett’s statement referenced above, some insight into Canada’s potential approach on FPIC and the Declaration generally can be drawn from a recent Q&A session with Minister Bennett conducted by Northern Public Affairs Magazine. The magazine received written responses from Minister Bennett on April 26, 2016 to questions posed by it. Notable highlights of her initial responses include:
- The government will, in full partnership and consultation with First Nations, Inuit and the Métis Nation, conduct a review of federal laws to ensure the Crown is executing its obligations in accordance with its constitutional and international obligations.
- Over the next several months, the government will work, in consultation with Indigenous groups and other stakeholders, on an approach to the implementation of the Declaration.
- Canada already has a portfolio of federal policies and programs that reflect the Declaration’s principles, as well as constitutional protections for Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982.
- At its core, FPIC is about meaningful consultation with Indigenous peoples on issues of concern to them with a goal of achieving consensus. Industry proponents, First Nations and government should all strive towards consensus.*
- The Crown’s duty to consult, and when appropriate accommodate, Indigenous groups, corresponds significantly with elements of the concept of FPIC, as interpreted as an obligation to ‘seek to obtain’ consent.*
Subsequently, on May 3, 2016, Northern Public Affairs received clarified responses to its questions from Minister Bennett’s office, which were posted on May 4th. Among other changes, notably, the two references to FPIC which we have starred above were removed from the Minister’s responses. In our view, this suggests that the federal government is taking a cautious approach in disclosing its potential views on FPIC prior to engaging in consultation with Indigenous groups and other stakeholders on implementation of the Declaration.
Further insight into the government’s potential stance on FPIC can be drawn from earlier comments made by Canada at the UN Permanent Forum on Indigenous Issues on Monday, May 9th. In a press conference on Monday preceding Tuesday’s announcement, Minister Bennett commented that the federal government’s adoption of the Declaration puts the resource sector ‘on notice’ that it needs to seek FPIC before starting projects that impact Indigenous lands. In her statement at the Opening Ceremonies of the Permanent Forum, federal Justice Minister Jody Wilson-Raybould also commented that the participation of Indigenous peoples in decisions that affect their lives is at the heart of the concept of FPIC.
The approach of FPIC being viewed as the objective of consultation rather than a veto right is consistent with the approaches taken by several other countries and organizations. For a more detailed discussion of this and other potential considerations relevant to Canada’s implementation of the Declaration, please refer to our previous article posted on Canadian ERA Perspectives.