BC’s Declaration on the Rights of Indigenous Peoples’ Act: Rising to the challenge of UNDRIP

On November 28, 2019, British Columbia became the first jurisdiction in Canada to incorporate the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), making UNDRIP part of BC law.

UNDRIP

UNDRIP is a comprehensive international instrument on the rights of indigenous peoples, that sets out basic human rights within an indigenous context and states that the rights set out within UNDRIP “constitute the minimum standards for the survival, dignity and well being of the Indigenous peoples of the world”. (Article 4)

UNDRIP is not a treaty and does not clearly fall within the definition of customary international law, hence its legal effect is debatable. For this reason, Canada and other jurisdictions have been working on domestic legislation to incorporate UNDRIP into domestic law. British Columbia has led the way in doing so.

Work on the Declaration began at the United Nations in 1982 and it was adopted by the UN in September 2007. Canada was one of four countries opposed to its adoption. In 2010, Canada supported the adoption of UNDRIP “with reservations” and became a full supporter of UNDRIP, without reservation, in 2016.

A private member’s bill, “An Act to Ensure that the Laws of Canada are in Harmony with the United Nations Declaration on the Rights of Indigenous Peoples” (Bill C-262) was before the Senate in 2019 when Parliament was dissolved for the election. The government of Canada confirmed its intention to pass UNDRIP legislation within the year.

The implementation of UNDRIP, as has been acknowledged in BC, represents a significant step toward reconciliation, based on the recognition and acceptance of the Indigenous rights set out within the Declaration.

A unique feature of the BC legislation is the opportunity enshrined to enter into agreements with Indigenous governing bodies to jointly exercise a statutory power of decision (section 6). This has quite successfully been a feature in a limited manner within the forestry sector in BC, and expanding it allows for further cooperation between Indigenous and non-Indigenous governments.

Differing interpretations

The UNDRIP is comprised of 46 articles. Aspects of UNDRIP raise some unanswered questions and differing interpretations between indigenous and non-indigenous readers of the document.

• Veto power

One question that looms large arises from Articles 19 and 32 that reference proposed state actions requiring the “free, prior and informed consent” of  Indigenous Peoples. Opinion is divided as to whether the Declaration is intended to provide Indigenous peoples with a veto over proposed state actions.

In adopting UNDRIP into BC law, Minister Fraser in November 2019 referenced with approval a 2009 statement of James Anaya, UN Special Rapporteur and confirmed:

“that standard [of free, prior and informed consent] is meant to ensure that all parties work together in good faith and that they make every effort to achieve mutually acceptable arrangements and that a focus should be on building consensus. This is quite different from veto, of course…the bill does not limit the right of government to make decisions in the public interest.”

Such statements and assurances have contributed to maintaining business confidence in BC.  There is a general understanding that achieving consent is desirable, therefore legislation emphasizing the importance of working toward consent would be acceptable. Consultation with Indigenous peoples is an understood part of doing business. A veto, if employed, would create a bar to future development. However, it is an expectation that has been voiced by some Indigenous leaders.

• Date of implementation

A further challenge arising under the BC law is that the literal language of sections 1(4) and 2(a) in the BC Act appears to suggest that the BC legislation comes into effect immediately following Royal Assent.

However, BC legislators have, both in writing as well as through statements made in the legislature, confirmed their understanding that the BC legislation was not implemented upon receiving Royal Assent, but will come into effect when alignment with BC laws takes place. Sections 3-5, as well as sections 6 and 7 of the BC legislation, confirm this view.

At present, there appear to be no immediate changes to the provincial consultation processes as a result of the passing of the legislation.

Future changes would be brought about with the preparation and implementation of an action plan to achieve the objectives of the Declaration by the BC government (as set out in section 4 of the legislation), and when BC has completed the work of aligning its laws with UNDRIP.

According to BC legislators, the task of tabling an action plan may take place within months. The work of aligning BC’s laws appears to be a longer-term project requiring, as a starting point, a review of BC’s laws to determine what alignment would be required and how to achieve it. The Minister of Indigenous Relations and Reconciliation has described this task as “generational work”.

• Indigenous government: elected v traditional

Articles 18 and 20 of UNDRIP recognize the right of Indigenous peoples to choose their representatives in accordance with their own procedures and to maintain and develop their own systems and institutions.

In circumstances where a community with both elected and traditional governments is divided in their support of one or the other, as has recently taken place among the Wetsuwet’en people in British Columbia (see Central Gaslink Pipeline v Huson  2019 BCSC 2264), the federal and provincial governments have ultimately sought resolution through negotiation with the Wetsuwet’en hereditary chiefs of recognition of the traditional leadership. How and if this will lead to a community resolution regarding the pipeline remains to be seen, as a division within the community continues to exist.

What’s next?

Canadian courts have yet to consider UNDRIP as a part of Canadian or provincial law. Continued dialogue and consultation with Indigenous groups and non-Indigenous sectors potentially impacted by the implementation of UNDRIP into domestic laws will be key in managing expectations and ensuring a smooth transition.

We can also expect that some of the conflicts arising as a result of the gap in expectations will find their way to the courts.

Anita Boscariol is a lawyer in the Indigenous Law Group and advises a variety of clients with matters related to issues of Indigenous self-government, economic development, governance, and engagement, consultation, and accommodation.