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TORONTO —
Currently moving through the parliamentary committee process, Bill C-15 purports to harmonize Canadian law with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which the global body adopted in 2007.
The bill is the third attempt in parliament to enshrine UNDRIP into law, and the Liberal government has been trying to move it promptly through readings and committee in order to get it passed before the summer parliamentary shutdown and the uncertainty of the timing of the next election.
Implementing UNDRIP would fulfill a campaign promise from Prime Minister Justin Trudeau. The bill passed second reading on April 19, with Conservatives voting along party lines against it. The bill is currently being studied by the Senate Standing Committee on Aboriginal Peoples.
How it started
The UN General Assembly adopted the Declaration on the Rights of Indigenous Peoples in September 2007, with an overwhelming majority of 144 countries in favour and four opposed. Canada stood out as one of the four countries to vote against it, along with the United States, Australia and New Zealand.
The UN says the declaration establishes “a universal framework of minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world” through 46 articles, covering issues such as equal rights, self-determination, and rights to their traditional lands.
Canada shifted its position in 2010 to support the declaration, but noted it was an ‘aspirational’ document that was not legally binding. In 2016, Canada fully endorsed UNDRIP and pledged to fully adopt and implement it.
Previous attempts to enshrine UNDRIP into law were through private member’s bills. The first, in 2014, was defeated at second reading, and the second, in 2019, stalled in the Senate. Bill C-15, however, is a government bill rather than a private member’s bill.
What Bill C-15 would do
While the bill is often described as enshrining UNDRIP into law, it would not actually directly implement the declaration’s various articles into Canadian law. Rather, it would establish a framework for their implementation.
The bill’s summary says it “provides that the Government of Canada must take all measures necessary to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples, and must prepare and implement an action plan to achieve the objectives of the Declaration.”
If passed, a minister would be made responsible for preparing and implementing a plan to achieve the objectives of UNDRIP “in consultation and co-operation with Indigenous peoples”.
The ‘veto’ issue
While C-15 addresses all 46 articles of UNDRIP, the most contentious issue as far the Canadian debate goes is the requirement for “free, prior, and informed consent” (FPIC) of Indigenous groups on any government decision that affects their land or rights, including approvals of development projects.
Critics of the attempts to enshrine UNDRIP into law have long claimed that this provision would give Indigenous groups an effective veto over development projects, and this worry was a reason the Canadian government under then-Prime Minister Stephen Harper initially voted against UNDRIP in 2007.
Federal Conservatives have asked the government for a more definitive definition of FPIC in the bill, but Crown-Indigenous Relations Minister Carolyn Bennett pointed out in April that doing so would require consensus among Indigenous partners co-developing the bill, which has not been reached. Bill backers also point out the word ‘veto’ does not appear in the bill nor in UNDRIP, and that the point of the phrase is to ensure consultation.
According to a government background document on the issue, Bill C-15 would not change Canada’s existing duty to consult Indigenous groups. “What it would do is inform how the Government approaches the implementation of its legal duties going forward. Additionally, it would do so in a way that provides greater clarity and creates greater certainty over time for Indigenous groups and all Canadians,” the document reads.
Key UNDRIP articles mentioning FPIC
Article 10: Relocation of Indigenous Peoples
Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.
Article 11.2: Redress for property taken
States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.
Article 19: Legislation affecting Indigenous Peoples
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
Article 28: Compensation for lands and resources
Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
Article 29.2: Storage or disposal of hazardous materials
States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.
Article 32.2: Consultation for projects affecting Indigenous Peoples
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
Support from Indigenous groups
Support for the bill from Indigenous leadership has been fairly widespread, but also guarded and not unanimous. There has been understandable skepticism about how the law will be implemented if passed – particularly the issue of free, prior-and informed consent — and some have said the legislation is flawed and doesn’t go far enough in addressing issues around self-government.
Some critics have pointed to the example of British Columbia, which passed its own law adopting UNDRIP in 2019, as that law didn’t stop the forced eviction of Wet’suwet’en peoples trying to stop construction of the Coastal GasLink Pipeline through unceded territory in 2020.
However, an open letter in March sponsored by Cree Nation and signed by several chiefs and Indigenous leaders called the bill “an historic opportunity to advance reconciliation,” and urged its passing, with amendments, in the current session of Parliament.
What does it mean for natural resource development in Canada?
Depending on who you ask, this could speed up approvals of resource development projects or prompt investors to shy away.
The bill does not create any new regulatory requirements for developers, and some see the additional legal clarity as something that could reduce barriers to development by prompting governments and companies to engage with affected Indigenous groups early in the process. Groups such as the First Nations Major Projects Coalition advocate partnering with large investors and developers on projects and say early consultation can eliminate the types of issues, such as working on sacred lands, that sometimes lead to disputes.
But there are also concerns that uncertainty over how FPIC will play out may scare off investors who view it as an additional risk to a project going forward.
What happens next
The bill is currently being pre-studied by the Senate Standing Committee on Aboriginal Peoples, and then will likely go back for a third reading in the House of Commons before going to the Senate. While the bill has enjoyed majority support in the House, there is no guarantee the bill would pass the Senate, where Bill-262, the previous private member’s attempt to enshrine UNDRIP into law, stalled in 2019.
The other issue is the clock, as adopting committee recommendations can take time, and the parliamentary summer break begins on June 23. With the current Liberal minority government, the longer the bill takes to pass, the greater chance the process could be hijacked by an election.
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