On June 21, 2023, Canada unveiled its Action Plan to bring the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into effect across Canada – at least in part.
As a non-binding international instrument, Canada first characterized UNDRIP as an "aspirational" baseline for the treatment of Indigenous Peoples. Binding or not, the implementation of UNDRIP is a complex exercise for any country.
However, this is particularly so where a country is home to a confederation, i.e. it has multiple governments that must coordinate with one another. Such is the case in Canada, which not only has several distinct levels of government—the Federal Government, ten provincial governments, three territorial governments, along with dozens of districts and municipalities—but these governments all have powers that often overlap and at times, conflict.
In this context, putting UNDRIP into practice by one government may not achieve advancement for all. The ultimate solution to the confederation quagmire is simple – Indigenous Peoples must lead the way.
The federal United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 (UNDA) and its place in the Canadian legal system
UNDA calls for a roadmap to the eventual integration of UNDRIP standards by the Federal Government. Similar to legislation established in BC, UNDA specifically calls for the creation of an Action Plan that serves as an initial point for continuing consultation and cooperation with Indigenous Peoples. The Action Plan itself comprises 181 guiding measures spanning the 2023-2028 period and categorized under the five chapters: Shared Priorities, First Nations Priorities, Inuit Priorities, Métis Priorities, and Indigenous Modern Treaty Partner Priorities.
Yet, UNDA's application is limited in scope in the sense that it binds the Federal Government only. While it confirms the protections provided by s 35 of the Constitution, and calls for a harmonization of Canadian laws with UNDRIP, the extent to which it may directly interact with or expand the scope of Indigenous rights guaranteed by the Canadian legal system remains unclear.
Furthermore, and critically, UNDA is also subject to the ordinary division of powers between the Federal Government and the provinces, meaning that its objectives can only apply where the Federal Government has authority to govern. This may create significant jurisdictional gaps where UNDA plays little or no role.
Natural resource development and UNDRIP's "Free, Prior and Informed Consent" (FPIC) Standard
Existing jurisprudence on the Crown's constitutional duty to consult and accommodate has delivered important wins to Indigenous groups, but has emphasized that it does not provide a veto. While some have suggested that the FPIC standard has the potential to provide a more robust protection in the nature of consent for Indigenous groups seeking to protect their lands from unwanted development, others have suggested that such an expansive approach is incompatible with the courts' prior statements about the duty to consult not providing for a veto. Indeed, the legal effect of UNDRIP standards and UNDA are yet to be determined by the courts. Moreover, whatever UNDA's FPIC standards may be, they will still not bind a province in connection with provincial jurisdiction and decision-making.
Implementing UNDRIP without provincial cooperation and coordination may also create significant gaps. Under section 92A of the Constitution, provincial governments have jurisdiction over non-renewable natural resources within their borders, including exploration, development, conservation and management. Such activities occur within the territories of Indigenous Peoples and frequently interfere with or limit traditional practices, including hunting, fishing, harvesting, gathering or ceremony. As a result, legal arguments directed to UNDRIP playing a role in the management and regulation of such natural resources have not been accepted by the courts to date. A notable exception is BC, which adopted UNDRIP legislation in 2019.
Irrespective of which level of government has jurisdiction over a given area, the level or levels of government that have the relevant jurisdiction under the division of powers is the one best placed to address Indigenous Peoples' rights and interests, which may include taking a lead role in ensuring that the relevant UNDRIP standards, including FPIC, are applied in a consistent and equitable manner.
Indigenous leadership in putting UNDRIP into practice
While the impact of UNDA remains to be seen, Indigenous Peoples can and must take the lead in defining what UNDRIP standards mean in practice. Regardless of whether a government has chosen to enact UNDRIP legislation, Indigenous communities can strive to hold all governments to the same standard. This may serve to force laggard governments – and possibly even the courts – to reevaluate current practices against emergent principles relevant to UNDRIP, all with a view to encouraging behaviour modification.
Driving the position involves more than just focusing on resource development; it also encompasses governance, economic development, environmental protections, financial and land management, among others. Indeed, Indigenous communities can begin to implement UNDRIP standards themselves through private arrangements with project proponents and through the application of their own laws and policies, without waiting for government and industry players to catch up. In this way, Indigenous Peoples themselves can act to fill some or all of the jurisdictional gaps between the Federal and provincial governments that might otherwise exist.