British Columbia introduces bill to align its laws with the United Nations Declaration on the Rights of Indigenous Peoples

The Government of British Columbia recently introduced Bill 41 – 2019: Declaration on the Rights of Indigenous Peoples Act (Bill 41) in the province’s Legislative Assembly. If it becomes law in its current form, the bill would require the B.C. Government to take certain actions consistent with, and to pursue the objectives of, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The bill seeks to further reconciliation between the B.C. government and Indigenous peoples by establishing a process to facilitate agreements between them.

What you need to know

Bill 41, if it becomes law, would require:

• in consultation with Indigenous peoples in B.C., the government to “take all measures necessary to ensure the laws of British Columbia are consistent with [UNDRIP]”;¹
• the B.C. government to prepare and implement an “action plan”—in consultation with Indigenous peoples— “to achieve the objectives of [UNDRIP]”;² and
• the minister³ to prepare an annual report regarding the progress made toward implementing the measures (described in the first bullet above) and “achieving the goals in the action plan”.⁴

“For the purposes of reconciliation” and “[f]or the purposes of this Act”, the bill also provides a mechanism by which the B.C. government may negotiate and enter into an agreement with an Indigenous governing body relating to: (a) the exercise of a statutory decision jointly and/or (b) the consent of the Indigenous governing body before the exercise of a statutory power of decision.⁵

Background

UNDRIP was adopted by the U.N. General Assembly in 2007, with 144 countries voting in favour of its adoption (in some form).⁶ Since then four countries—including Canada—have adopted UNDRIP. 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 entitled.⁷

Canada voted against UNDRIP in 2007, but subsequently endorsed the Declaration as a “non-legally binding aspirational document”.⁸ Then, in 2016, the Government of Canada adopted UNDRIP without reservation, when Indigenous Affairs Minister Carolyn Bennett announced at the Permanent Forum on Indigenous Issues that Canada was “now a full supporter of the declaration, without qualification”.⁹

On April 21, 2016, M.P. Romeo Saganash introduced Bill C-262 as a private member’s bill. It passed through the House of Commons with the support of the Liberals, NDP, Green Party and Bloc Québécois, but did not pass third reading in the Senate and died on the order paper upon dissolution of the last Parliament.¹⁰ The election platform of the new Government of Canada commits the government to “move forward with introducing co-developed legislation to implement the Declaration as government legislation by the end of 2020”.¹¹

Bill 41, which was introduced in the B.C. Legislature on October 24, 2019 and subject to second reading on October 31, 2019, is similar to Bill C-262 with respect to aligning laws with UNDRIP, developing an action plan and requiring annual reporting.

Bill 41 as a framework

Bill 41’s stated purposes help to inform the framework for how the B.C. government would like to proceed, but not the ultimate destination of what implementation will look like. The bill’s stated purposes are:

1.To affirm the application of UNDRIP to the laws of B.C.;
2.To contribute to the implementation of UNDRIP; and
3.To support the affirmation of, and develop relationships with, Indigenous governing bodies.¹²

Given that many aspects of the bill (such as, ensuring B.C.’s laws are consistent with UNDRIP and preparing an action plan) involve consultations with Indigenous peoples, it is not surprising that Bill 41 does not specify an ultimate destination. In short, the bill provides a framework for future action.

Bill 41 provides a mechanism for the B.C. government to negotiate and enter into an agreement with an Indigenous governing body relating to statutory decisions by government. The bill provides a number of procedural aspects related to this mechanism (e.g., such agreements will need to be published in the B.C. Gazette to be effective). However, the bill provides little detail regarding how such agreements will be used beyond the references “[f]or the purposes of reconciliation” and “[f]or the purposes of this Act”.

Monitoring next steps

Many will be closely following Bill 41. Of course, the bill (if enacted) and the actions that arise from the implementation of the bill’s framework may affect Indigenous peoples, project proponents and others in B.C. In addition, other governments, Indigenous peoples, proponents and persons will likely be watching to see whether the bill and its framework provides a helpful model for not only other jurisdictions but also for others.

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¹ Declaration on the Rights of Indigenous Peoples Act, section 3.

² Declaration on the Rights of Indigenous Peoples Act, section 4(1).

³ Although not specified in the bill, we expect that this is intended to be a reference to B.C.’s Minister of Indigenous Relations and Reconciliation.

⁴ Declaration on the Rights of Indigenous Peoples Act, section 5.

⁵ Declaration on the Rights of Indigenous Peoples Act, sections 6-7.

⁶ Learn more here.

⁷ Report of the Special Rapporteur on the rights of Indigenous people, GA. 68th Sess., UN Doc. A/68/317 (2013), para. 63.

⁸ The Honourable Frank Iacobucci, et. al., “Free, Prior and Informed Consent in Canada: Towards a New Relationship with Indigenous Peoples”, para. 39.

⁹ Learn more here.

¹⁰ Bill C-262’s legislative history is available here.

¹¹ Election platform of the Liberal Party of Canada, p. 61.

¹² Declaration on the Rights of Indigenous Peoples Act, section 2.

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