Federal Government introduces Bill to implement the United Nations Declaration on the Rights of Indigenous Peoples

The federal government recently introduced Bill C-15: An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples (Bill) in the House of Commons. If it becomes law in its current form, the Bill will require the federal government to take all measures necessary to ensure Canada’s federal laws are consistent with the United Nations Declaration on the Rights of Indigenous People (UNDRIP). This is the second UNDRIP implementation bill that has been placed before the federal parliament. The first, sponsored by then-NDP MP Romeo Saganash, expired with the dissolution of the last parliament before the October 2019 election.

What you need to know

• The purpose of the Bill is to affirm UNDRIP as a universal international human rights instrument with application in Canadian law, and provide a framework for the Government of Canada’s implementation of UNDRIP.
• The Bill, if it becomes law, would require the Government of Canada, in consultation and cooperation with Indigenous peoples, to:
  • take all measures necessary to ensure Canada’s federal laws are consistent with UNDRIP; and
  • prepare and implement an action plan to achieve the objectives of UNDRIP, to be developed within three years of the date on which the section of the legislation that sets out the time limit comes into force.
• The precise scope of certain obligations contained in UNDRIP is currently debated, including what is required in a given context by the principles of “free, prior and informed consent”. It therefore remains to be determined what modifications to existing law will be required in order to ensure alignment with UNDRIP.
• The Bill would set a process in motion to implement UNDRIP into federal law. It would not apply to matters within the jurisdiction of provinces and territories. In November 2019, British Columbia passed the Declaration on the Rights of Indigenous Peoples Act, setting a similar process in motion in that province.

Background

UNDRIP was adopted by the U.N. General Assembly in 2007, with 144 countries voting in favour of its adoption (in some form)¹. Since then, four additional countries—including Canada—have endorsed the Declaration². Because a Declaration is a Resolution of the U.N. General Assembly (and not a Treaty), it is not binding as a matter of international law. Regardless, UNDRIP is widely viewed as representing international consensus regarding the minimum set of rights to which Indigenous peoples are entitled³.

Canada subsequently endorsed UNDRIP and committed to implement it into domestic law. Canada first endorsed UNDRIP as a “non-legally binding aspirational document”⁴. In its Calls to Action, the Final Report of the Truth and Reconciliation Commission of Canada called for the implementation of UNDRIP into Canadian law. In May 2016, the Government of Canada adopted UNDRIP without qualifications⁵. On April 4, 2016, M.P. Romeo Saganash introduced Bill C-262 as a private member’s bill, which passed through the House of Commons with the support of the Liberals and NDP but did not pass third reading in the Senate and expired on the order paper on dissolution of the last parliament⁶. The federal government committed to implementing UNDRIP into federal law on May 10, 2016 at the United Nations Permanent Forum on Indigenous Issues.

Bill C-15 was introduced into the House of Commons on December 3, 2020 by the Government of Canada.

Substantive obligations

The Bill requires the Government of Canada, in consultation and cooperation with Indigenous peoples, to take all necessary measures to ensure that the laws of Canada are consistent with UNDRIP. To do so, the government must develop and implement a national action plan to achieve the objectives of UNDRIP, in consultation and cooperation with Indigenous peoples, within three years from entry into force of the section of the legislation.

The Bill identifies certain measures that the action plan must address, including:

• addressing injustices, combating prejudice and eliminating all forms of violence and discrimination, including systemic discrimination, against Indigenous peoples and Indigenous elders, youth, children, women, men, persons with disabilities and gender-diverse persons and two-spirit persons;
• promoting mutual respect and understanding as well as good relations, including through human rights education;
• measures related to monitoring, oversight, recourse or remedy or other accountability measures with respect to the implementation of UNDRIP; and
• measures related to monitoring the implementation of the action plan, as well as reviewing and amending the plan.

The Bill also imposes an annual reporting requirement. Within 90 days after the end of each fiscal year, the Minister to be designated must, in consultation and cooperation with Indigenous peoples, prepare a report for the previous fiscal year on the measures taken to ensure that the laws of Canada are consistent with UNDRIP, and preparation and implementation of the action plan.

Next steps

The Bill will proceed through three readings in each house of parliament, and may be amended through that process. If enacted, it will represent an important step in the reconciliation between the government and Indigenous peoples. The precise scope of certain obligations contained in UNDRIP is currently debated, including what is required in a given context by the principles of “free, prior and informed consent”. It therefore remains to be seen as to whether, and how, Canadian law may be altered to ensure consistency with UNDRIP if the Bill becomes law.

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¹ United Nations Declaration on the Rights of Indigenous Peoples (A/RES/61/295), United Nations Voting Record, available here.

² The Honourable Frank Iacobucci, et. al., “Free, Prior and Informed Consent in Canada: Towards a New Relationship with Indigenous Peoples” para. 16.

³ Report of the Special Rapporteur on the rights of Indigenous people, GA. 68th Sess., UN Doc. A/68/317 (2013) at para. 63.

⁴ The Honourable Frank Iacobucci, et. al., “Free, Prior and Informed Consent in Canada: Towards a New Relationship with Indigenous Peoples” para. 39.

⁵ Government of Canada, United Nations Declaration on the Rights of Indigenous Peoples, available here.

⁶ 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, 1^st Sess., 4nd Parl., 2016; The Honourable Frank Iacobucci, et. al., “Free, Prior and Informed Consent in Canada: Towards a New Relationship with Indigenous Peoples” para. 42.