Stephanie AxmannBryn GraySelina Lee-Andersen

It has been over a year since the federal government announced at the UN Permanent Forum on Indigenous Issues that Canada was now a full and unqualified supporter of UNDRIP and that the federal government would be implementing UNDRIP in Canada (details here). Following that announcement, Canada indicated that it would be carrying out consultations on the implementation of UNDRIP with Aboriginal groups and other stakeholders over the course of several months.

Consultation and other related work remain underway a year later but there have been numerous developments over the past twelve months that will likely inform how Canada implements UNDRIP, including its approach to interpreting the principle of “free, prior and informed consent” (FPIC) articulated in UNDRIP. These developments continue to point to an approach that would see consent as the objective of Aboriginal consultation and not an absolute requirement. Below is our round-up of notable federal UNDRIP initiatives that have taken place over the course of the past year, including the latest Principles released in July, as well as an update with respect to British Columbia’s new NDP government.

Initial Statements Regarding UNDRIP

In announcing Canada’s unqualified support for UNDRIP in May 2016, Indigenous and Northern Affairs Canada Minister Carolyn Bennett stated that the federal government intended to “implement the declaration in accordance with the Canadian Constitution” and that this implementation would be “breathing life into s. 35” which the Government of Canada was now recognizing as the “full box of rights for Indigenous peoples of Canada”. These statements were strong initial signals that the Government of Canada intended to interpret the provisions in UNDRIP requiring the “free, prior, and informed consent” of Aboriginal peoples as an objective and not an absolute requirement or veto given that this would be inconsistent with the Canadian Constitution and the jurisprudence on section 35. Indeed, the Supreme Court of Canada once again reaffirmed last month in Chippewas of the Thames that “balance and compromise” are inherent in the reconciliation process mandated by section 35 and that the duty to consult “does not provide Indigenous groups with a ‘veto’ over final Crown decisions” (paras. 59-60).

In addition to this initial statement, Justice Minister Jody Wilson-Raybould also commented publicly a couple of months later in July 2016 about the unworkability of direct implementation of UNDRIP into law, as certain of its provisions are at odds with Canada’s existing legal framework. Rather, she said that the government would consult on implementation on each of the Articles of the Declaration, and that UNDRIP would be implemented over time through legislation, policy and action. In September 2016, Minister Wilson-Raybould also publicly stated that UNDRIP could not be incorporated “word for word” into law, and that implementation of UNDRIP must consider the constitutional and legal contexts of Canada.

Federal Consultation and Implementation Initiatives

1. Review of Environmental and Regulatory Processes Legislation, Expert Panel Report and Discussion Paper

In June 2016, the federal government launched a comprehensive review of four key environmental and regulatory processes: the Canadian Environmental Assessment Act, 2012 (CEAA 2012), the National Energy Board Act (NEBA), the Fisheries Act and the Navigation Protection Act. The federal government indicated that “[c]onsultation will be at the core of this review.”

Expert Panel Report

In August 2016, the Minister of Environment and Climate Change established an independent Expert Panel to develop recommendations on potential changes to CEAA 2012. One of the key goals set out in the Panel’s terms of reference was to find ways to enhance Indigenous participation and consultation, and to reflect the principles of UNDRIP. The Expert Panel Report, Building Common Ground: A New Vision for Impact Assessment in Canada was released in April 2017. It suggests that the role of Indigenous peoples should be significantly increased from the current environmental assessment process in order to include them in decision-making at all stages of the assessment, in accordance with their own laws and customs, which would include integration of traditional knowledge and providing for dispute resolution processes.

The Expert Panel Report refers to incorporating principles of UNDRIP, including FPIC, and suggests that the proposed new impact assessment regime should be based on a principle of “collaborative consent”. It states that FPIC is not inconsistent with the duty to consult and accommodate, but rather should strengthen and supplement it. The Report suggests that Indigenous groups should have the right to withhold consent at the decision stage of the assessment process, however, such right must be exercised reasonably and should be subject to review. Further details of the Report are available on our blog.

The federal government has not yet announced how it will respond to this Report and the reports from the reviews of the NEBA, the Fisheries Act, and the Navigation Protection Act, although some sense of the potential direction can be gleaned from the recently released Discussion Paper, discussed below.

Discussion Paper

On June 29, 2017, the federal government released a Discussion Paper outlining its progress to date in reviewing federal environmental and regulatory processes conducted over the past year, and potential reforms being considered in respect of all four Acts. One of the five guiding principles for any changes that will be made is “[p]articipation of Indigenous peoples in all phases that advances the Government’s commitment to” UNDRIP and reconciliation.

One of the key measures being considered is “early and regular engagement and partnership with Indigenous peoples based on recognition of Indigenous rights and interests from the outset, seeking to achieve free, prior and informed consent through processes based on mutual respect and dialogue” [emphasis added].  This language is consistent with the earlier statements of the two federal ministers discussed above and, together with other potential changes in the Discussion Paper, it suggests a more enhanced role for Indigenous peoples in environmental (impact) assessment processes.  These potential changes may include:

  • more direct engagement between Crown representatives and Indigenous peoples;
  • developing clear guidance to industry on how to incorporate the interests of multiple stakeholders and consider Indigenous rights and interests;
  • improving participant funding programs for Indigenous peoples and the public;
  • incorporating Indigenous knowledge alongside other sources of evidence;
  • explicitly requiring assessment of impacts on Indigenous peoples;
  • enabling increased Indigenous involvement, including Indigenous-led assessments and formalizing the co-development of frameworks for collaboration with Indigenous peoples;
  • convening working tables with Indigenous peoples and increasing participation of Indigenous peoples on assessment boards and review panels;
  • clarifying roles for consultation and accommodation in regulatory processes;
  • increasing economic participation of Indigenous communities and businesses and creating opportunities for Indigenous partnerships and co-development in monitoring;
  • enabling substitution of project assessments to Indigenous governments; and
  • ensuring that processes better recognize Indigenous jurisdiction, laws, practices and governance systems.

The public is invited to share its views on the Discussion Paper until August 28, 2017 at www.canada.ca/environmentalreviews. The government states that it will reflect on the input received and will continue to consult and engage with Canadians moving forward.

 2. Establishment of Ministers’ Working Group to Review Indigenous-Related Laws and Policies

On February 22, 2017, Canada announced that it was assembling a Working Group of Ministers to review relevant federal laws, policies and operational practices as they relate to Indigenous peoples, their rights and interests, to help ensure the Crown is meeting its constitutional obligations with respect to Aboriginal and treaty rights; adhering to international human rights standards, including UNDRIP; and supporting the implementation of the Truth and Reconciliation Commission’s 94 Calls to Action.

The Working Group is comprised of six Ministers and is chaired by Justice Minister Wilson-Raybould. The Working Group states that it will work with Indigenous leaders, youth, and experts on various legal and policy questions relating to Indigenous peoples, “as it assesses and recommends changes to laws and policies that will meet Canada’s constitutional obligations and international commitments and advance reconciliation.” A “foundational” part of the review will be the recognition of the rights of Indigenous peoples in all federal laws, policies and operational practices that impact First Nations, Inuit and Métis.

The Working Group has a demanding task ahead of it, considering the amount of federal legislation, policies and practices that may touch on or impact Indigenous rights and interests. It could therefore take some time before any legislative changes are ultimately implemented.

3. Minister’s Comments at UN Permanent Forum on Indigenous Issues 16th Session

The Hon. Carolyn Bennett delivered a speech in New York on April 25, 2017, following up on her 2016 speech on Canada’s commitment to implementing UNDRIP. She summarized the steps that the federal government was taking to meet this commitment, in particular she noted that:

  • the Ministers’ Working Group (described above) has been tasked with a review of all federal laws and policies related to Indigenous peoples, mentioning that this exercise was about “reversing the colonial and paternalistic approaches” and “breathing life into Section 35 of Canada’s Constitution”;
  • Canada and the Prime Minister are holding annual meetings with First Nations, Inuit and the Métis Nation to identify joint work priorities;
  • Canada is now tracking publicly the process of the 94 Calls to Action of the Truth and Reconciliation Commission, and can show progress on 41 of 46 of those which the federal government has a direct responsibility; and
  • principles of FPIC and Indigenous knowledge are now being built into review processes for environmental assessment in Canada (described above), thereby developing “new, more flexible paths to the recognition of rights and jurisdiction and self-determination as well as new fiscal relationships.”

4. Release of Principles respecting the Government of Canada’s relationship with Indigenous Peoples

In July 2017, the federal government released a document entitled, “Principles respecting the Government of Canada’s relationship with Indigenous Peoples” (10 Principles). The 10 Principles is a list of 10 principles aimed at achieving reconciliation with Indigenous peoples based on “recognition of rights, respect, co-operation, and partnership” as the foundation for transformative change.

In its introduction to the 10 Principles, the federal government states that the implementation of UNDRIP “requires transformative change in the Government’s relationship with Indigenous peoples.” The government states that it will fulfil its commitment to implementing UNDRIP “through the review of laws and policies, as well as other collaborative initiatives and actions.” It states that this approach aligns with UNDRIP, which does not provide specific guidance for implementation, but contemplates that it may be implemented by States “through various measures”.

The 10 Principles touches on an array of subject matter, such as the recognition of the right to self-determination and self-government, reconciliation, the honour of the Crown, treaties and agreements as acts of reconciliation, section 35 rights, a renewed fiscal relationship, and a distinctions-based approach, as well as FPIC.

The 6th principle addresses FPIC directly, stating: “Meaningful engagement with Indigenous Peoples aims to secure their free, prior, and informed consent when Canada proposes to take actions which impact them and their rights on their lands, territories, and resources” [emphasis added]. More specifically, the discussion of the 6th principle states that the government is committed to relationships that “builds on and goes beyond the legal duty to consult” by recognizing “the right of Indigenous peoples to participate in decision-making in matters that affect their rights through their own representative institutions and the need to consult and cooperate in good faith with the aim of securing their free, prior and informed consent” [emphasis added]. It further states that the importance of FPIC, as identified in UNDRIP, “extends beyond title lands. To this end, the Government of Canada will look for opportunities to build processes and approaches aimed at securing consent, as well as creative and innovative mechanisms that will help build deeper collaboration, consensus, and new ways of working together” [emphasis added].

Provincial Update – BC Commits to Implement UNDRIP

On the provincial front, the government of British Columbia recently joined Alberta in committing to implement UNDRIP in the province. With a new NDP minority government in place (supported by the BC Green Party), the commitment by the BC NDP to adopt UNDRIP is a “foundational piece” of the relationship between the two parties. In particular, the 2017 Confidence and Supply Agreement between the BC Green Caucus and the BC New Democrat Caucus states that both caucuses support the adoption of UNDRIP, the Truth and Reconciliation Commission calls-to-action and the Supreme Court of Canada’s Aboriginal title decision in Tsilhqot’in. Further, the Confidence and Supply Agreement provides that the parties will ensure the new government reviews policies, programs and legislation to determine how to implement the principles of UNDRIP in BC.

Now that Premier John Horgan and his cabinet have been sworn in, there are increased expectations of tangible actions on Aboriginal matters, including a call by First Nations Summit leaders in July 2017 for the NDP and Green caucuses to take immediate steps to fulfill its commitments under the NDP-Green agreement, including formal adoption of UNDRIP. The Honourable Scott Fraser was appointed as BC’s Minister of Indigenous Relations and Reconciliation, and under his mandate letter, Minister Fraser has been tasked with (among other things):

  • Working collaboratively with First Nations to establish a clear vision of reconciliation to guide the adoption of UNDRIP, the Truth and Reconciliation Commission Calls to Action and the Tsilhqot’in decision.
  • In partnership with First Nations, transform the treaty process so it respects case law and UNDRIP.

UNDRIP & FPIC: Next Steps

As we have previously written, Canada’s stated position on UNDRIP will not affect Canada’s existing laws until UNDRIP is implemented. The extent to which Canadian law may be substantively impacted will depend on Canada’s interpretation of UNDRIP and FPIC and the manner in which it carries out implementation. To date, there has been no indication that the federal government intends to implement UNDRIP as a standalone policy document or piece of legislation. Rather, the current approaches of the federal government to review its laws and policy with a view to implementing the principles of UNDRIP, where appropriate, seem to align with the earlier comments of the Justice Minister.

FPIC is a prominent feature of UNDRIP, referenced in Articles 10, 11(2), 19, 28(1), 29(2) and 32(2). As discussed above, the federal government continues to use terminology which suggests that consent will be the objective of consultation rather than an absolute requirement.  The Discussion Paper states that engagement and partnership with Indigenous peoples is “seeking to achieve” FPIC and the 10 Principles appears to clearly set out the government’s view that FPIC is an aim or objective of meaningful consultation, rather than a requirement amounting to a veto right. Even the Expert Panel Report suggests imposing a reasonableness requirement to any withholding of consent in an assessment process (although it does not elaborate what would constitute reasonableness in the circumstances).

The approach to treat FPIC as an objective of meaningful consultation rather than as a veto right is consistent with the approaches taken by several other countries and organizations. For a more detailed discussion and analysis of FPIC and other potential considerations relevant to Canada’s implementation of UNDRIP, please refer to our previous article posted on Canadian ERA Perspectives.

Despite this potential limitation on FPIC, it is clear that the government intends to implement processes that allow for much deeper and more meaningful involvement by Indigenous peoples in decisions affecting their rights and traditional lands which will likely lead to greater government scrutiny of consultation and accommodation efforts by proponents. Please follow our blog as we continue tracking the implementation of UNDRIP principles in Canada.