UNDRIP in a northern context

Feb 24, 2021 | North of 60 News

By Adam Chamberlain

After promising to make it happen for some time, in December 2020 the Government of Canada introduced legislation (referred to as Bill C-15) intended to implement the United Nations Declaration on the Rights of Indigenous Peoples in Canada (UNDRIP). The government has stated that this is a key step in renewing Canada’s relationship with Indigenous peoples. The stated purpose of the bill is to affirm UNDRIP as a universal, international, human rights instrument with application to Canadian law.  The proposed bill provides a framework for the government’s implementation of UNDRIP.

Bill C-15 requires the minister (in consultation and cooperation with Indigenous peoples and with other federal ministers) to prepare and implement an action plan to achieve the objectives of UNDRIP. This action plan is required to be prepared within three years of the Act coming into force.

While it is not known what the action plan will eventually contain, the bill requires that it: address injustices, combat prejudice and eliminate 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.

The plan is also to: promote mutual respect and understanding, as well as good relations, including through human rights education; address monitoring, oversight, recourse or remedy or other accountability measures with respect to the implementation of the Declaration; and to describe measures related to monitoring the implementation of the plan and reviewing and amending the plan.

Bill C-15 is “enabling legislation” in that it required things to be done but does not contain the details of what those things will say or require.  As such, it is hard to know what the action plan will look like and how effective it will be in advancing Indigenous interests.  

The introduction of Bill C-15 follows the 2016 endorsement of UNDRIP by the Canadian Government and calls to implement UNDRIP by both the Truth and Reconciliation Commission and the National Inquiry into Missing and Murdered Indigenous Women and Girls.  Few would argue with the intentions of those advocating for UNDRIP’s acceptance, however, it is not clear whether the implementation of UNDRIP in the Canadian context will have a significant impact on the lives of Indigenous Canadians. This is particular given the protection already afforded to Aboriginal and Treaty Rights by the Constitution and by Canadian courts. Whether the addition of UNDRIP to the Canadian legal environment will improve matters remains an open question.

While Bill C-15’s eventual effects across Canada are unknown, the impact on the regulatory regime in Canada’s north will be subject to a different set of circumstances that may be more complex than those in southern Canada.

The co-management regimes in each of the Yukon, Northwest Territories, and Nunavut govern the development of natural resources.  To varying degrees, these co-management regimes already require significant Indigenous involvement in decision making, the regulatory assessment of potential project impacts, and the imposition of terms and conditions on project proponents. Indeed, some have referred to the northern co-management regimes as being the poster children of Indigenous participation in resource-related regulatory decision making in Canada.

It is in the context of northern co-management that the proposed implementation of UNDRIP will be undertaken and eventually be assessed.  As is the case with the action plan, the implications of the implementation are as yet unknown.  Indeed, while positive impacts of the implementation of UNDRIP are commonly assumed, it has yet to be determined whether and how the implementation of UNDRIP will actually increase the benefits to Indigenous interests in either the north or the south.  

Also notable, UNDRIP contains a requirement that Free, Prior and Informed Consent (known commonly as “FPIC”) be obtained from Indigenous peoples before resource exploitation occurs.  The use of the term “consent” within FPIC has created questions and concerns regarding whether or not this constitutes a “veto”. Many suggest that it does not, while others view the term itself as unhelpful. This observation is often noted as others with decision making roles (municipalities and other governments for example) are not described as having a “veto”.  

Finally, adding a fundamental uncertainty to those described above is the fact that C-15 has been introduced into a minority parliament.  As such, whether or not it will eventually be passed into law remains to be seen.

Adam Chamberlain is a partner with the law firm Gowling WLG.  He is an active member of the firm’s Canada North Practice Group and is called to the bar in the Northwest Territories, Nunavut, Yukon, and Ontario.