January 25, 2021

Getting it right at the outset: Implementing UNDRIP in Canada

The history of Canada’s treatment of Indigenous Peoples is not a proud one. While much progress has been made over the years, reconciliation remains a long and incremental journey—a process strongly supported by the Business Council of Alberta and our member companies.

An important step on that path took place on December 3rd of last year when the Government of Canada introduced legislation to implement the terms of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into Canadian law. The Government sees UNDRIP as a critical component of the reconciliation process. According to Justice Canada, it is a key building block in fully recognizing, respecting, protecting, and fulfilling the rights of Indigenous Peoples.

What is UNDRIP?

UNDRIP is a declaration adopted by the United Nations in 2007. According to Article 43 of the Declaration, its intent is to enshrine the rights that “constitute the minimum standards for the survival, dignity, and well-being of the indigenous peoples of the world.”

Canada was one of only a few countries that voted against UNDRIP at that time. It did so in part because of misgivings with some provisions of the Declaration, including “free, prior and informed consent” (FPIC) if interpreted as a veto.

However, in 2016, the current government signed on to UNDRIP and committed to implementing the Declaration into Canadian law. On December 3rd, the government took the next step in UNDRIP implementation, introducing Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples in the House of Commons.

Through the work of our member-led Task Force on UNDRIP, the Business Council of Alberta was actively involved in the government’s brief window for industry engagement which preceded the introduction of Bill C-15. Our official submission to the federal government can be found here. The Task Force includes Indigenous representation and ongoing consultation with Indigenous communities for input. The Task Force and its members continue to study UNDRIP implementation and seek the perspective of Indigenous groups to better inform our understanding.

What does Bill C-15 do?

Bill C-15 is what is called framework legislation. It affirms that UNDRIP is a universal human rights instrument with application in Canadian law; and it provides a framework for how the Government of Canada will go about implementing it—essentially through the creation of an action plan. The task of developing this action plan must be completed within three years.

Since Bill C-15 is about declaring that UNDRIP has application in Canadian law, by far the biggest step in this process is not about passing the proposed legislation into law—it’s about what comes next. Through Bill C-15, the Government of Canada will commit to ensuring that all past and future legislation aligns with UNDRIP. This will be followed, over time, by initiatives focusing on adapting and conforming specific legislation according to priorities set out by the Government of Canada in consultation with Indigenous groups. In the meantime, federal courts will be invited to use UNDRIP as an interpretive aid for legislation that remains unchanged.

Industry perspectives on UNDRIP implementation

The Business Council of Alberta believes strongly in the value and importance of Indigenous reconciliation. We see UNDRIP as a vital and important declaration that, properly implemented, could help to advance that goal. Our aim is to work alongside the Indigenous Peoples in Canada and the business community to advance reconciliation and shared prosperity.

In fact, partnerships between Indigenous groups and industry have been leading the way in terms of economic reconciliation. While more still needs to be done, businesses have been working closely and building relationships with Indigenous communities to enhance economic opportunities and partnerships. They have led Canadian efforts to engage with Indigenous communities, to ensure participation in economic development, and to create sound, mutually beneficial partnership agreements.

This is especially true when it comes to resource development. Many current economic opportunities available to Indigenous communities are centred on natural resources, especially in remote areas of the country where the population is sparse and there are few other options available. Resource projects provide significant opportunities for creating economic growth and improving living standards for Indigenous Peoples.

Against the backdrop of our strong support for the principles of UNDRIP, we are concerned that the federal government’s approach to implementing the Declaration could inhibit or slow progress on economic reconciliation. Our reservations include the following:

  • Outside of National Indigenous Organizations, there has been little federal government consultation with Indigenous communities about UNDRIP;
  • The meaning of several key terms and concepts within UNDRIP and how they may be applied in Canadian law are unclear, notably FPIC;
  • Uncertainty as to who speaks for Indigenous communities (elected Chiefs, Hereditary Chiefs, the community at large, etc.)—a pre-existing issue that is in the purview of the communities themselves, but creates ambiguity when it comes to seeking consent;
  • What happens in cases where different Indigenous communities have unsettled overlapping claims over traditional territories and conflicting views on whether economic development projects should proceed; and
  • The unclear effect that Bill C-15 and alignment with UNDRIP will have on the current understanding of the duty to consult.

Left unaddressed, these concerns could significantly increase the uncertainty around the viability of new resource (and other) investments in Canada, leading to a loss of economic and employment opportunities for Indigenous Peoples in Canada. This result would undermine rather than enhance efforts to more equitably shared social and economic prosperity in Canada.

The federal government’s response to these concerns to date has been, in essence, that reconciliation is a long journey, and we will figure out the details along the way. We agree that reconciliation is a journey, but when it comes specifically to UNDRIP implementation and Bill C-15, there should be some parameters to provide common guidance for partners to work together. Our concern is that if the ambiguity resulting from these outstanding questions is not addressed in legislation, they will be answered in the courts. That will inevitably set Canada on a path of litigation that runs directly counter to the goal of reconciliation.

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