On December 3, 2020, the federal government tabled Bill C-15. 1 Bill C-15 is the federal government's response to calls 2 to implement the United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP" or the "Declaration") as a framework for reconciliation in Canada. The Bill will now proceed through the legislative process, where it may be subject to changes as it is debated further.
Bill C-15 was developed after a previous Private Member's Bill, tabled in 2016 by Romeo Saganash, Bill C-262, 3 stalled in the Senate and failed to advance when the last election was called.
Overview of Bill C-15
The core components of the Bill are:
A Commitment to Aligning Laws (s. 5)
"Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration."
A Commitment to Developing an Action Plan (s. 6)
- "The Minister must, in consultation and cooperation with Indigenous peoples and with other federal ministers, prepare and implement an action plan to achieve the objectives of the Declaration."
- The action plan must include measures to address systemic discrimination as well as measures "related to monitoring, oversight, recourse or remedy or other accountability measures with respect to the implementation of the Declaration."
- The action plan "must be completed as soon as practicable, but no later than three years after the day on which this section comes into force."
Annual Reporting Obligations (s. 7)
The Minister must prepare an annual report on the measures taken to align Canadian laws with UNDRIP and the status of the action plan.
Other notable elements of the Bill include:
A Purpose Statement
Which provides that the purpose of the Act is to "affirm the Declaration as a universal international human rights instrument with application in Canadian law" and "provide a framework for the Government of Canada's implementation of the Declaration" (s. 4).
Other Interpretive Provisions
- A statement that nothing in the Act is to be construed as delaying the application of the Declaration in Canadian law (s. 2(3)); and
- A non-derogation provision that provides that the "Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them" (s. 2(2)).
How Does Bill C-15 Compare to Other Efforts to Implement UNDRIP?
At a press conference after the Bill's tabling, 4 Justice Minister David Lametti stated that Bill C-262 was used as a basis for the development of Bill C-15 and that BC had shown the way forward in passing the Declaration on the Rights of Indigenous Peoples Act ("DRIPA") 5 in 2019. While many of the core components are similar, there are also differences between Bill C-15 and Bill C-262 and DRIPA.
Bill C-15 departs from Bill C-262 in a few important respects. First, the affirmation of UNDRIP in Bill C-15 is now contained in the purpose statement, clarifying that it is intended to provide direction on how the substantive provisions of the legislation are to be interpreted. Further, Bill C-15 provides that the action plan could take up to three years to develop. At the tabling press conference, Assembly of First Nations Chief Perry Bellegarde praised the introduction of the legislation as an important step forward in the reconciliation process, but also noted the three-year timeline for preparing and adopting the action plan is long.
Bill C-15 also shows several similarities to BC's DRIPA, discussed in our earlier bulletin series. 6 That said, there are several nuanced differences between the two pieces of legislation. Most notably, Bill C-15 does not provide for shared decision-making agreements with Indigenous governing bodies like its BC counterpart.
It is also important to note that Bill C-15 will only apply to laws within federal jurisdiction. However, additional provinces may follow suit in enacting legislation giving the Declaration effect within each province to provincial laws of general application.
Uncertainty Remains
The purpose section, stating that UNDRIP is "a universal international human rights instrument with application in Canadian law", has the potential to be misinterpreted. Declarations, such as UNDRIP, are not meant to be brought directly into the domestic law of signatories to the Declaration. Their role is to inform the interpretation of law in Canada and to inspire legislation on these Indigenous or human rights issues. Clarity from government on the meaning of "application in Canadian law" will be important when it is interpreted in the future. The requirement of "free prior and informed consent" ("FPIC") that features prominently in UNDRIP means that Canada will need to be clear about the interpretation of these provisions in the context of Bill C-15.
In relation to the development of resource projects, there is a spectrum of interpretations of the provisions relating to FPIC. This could lead to potential misunderstandings on the application of FPIC to the laws of Canada and, in particular, the potential for unmet expectations within Indigenous communities. In order to mitigate against these uncertainties, the government of Canada will need to be clear in its communications regarding what changes Canada foresees for project development within federal jurisdiction and the anticipated pace of these changes.
As a starting point, at the press conference, Justice Minister David Lametti pointed to certain pieces of legislation "that were already drafted with the UN Declaration in mind... as an example of how to move forward": Bill C-91 (An Act respecting Indigenous languages); Bill C-92 (An Act respecting First Nations, Inuit and Métis children, youth and families); and Bill C-69 (An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts).
Further clarity will also be required on whether the law that has developed regarding Section 35 of the Constitution Act, 1982, including the concept of consultation from the Haida decision, is consistent with UNDRIP. Clarity on these points will go a long way to providing certainty on the impacts of Bill C-15, as well as providing clarity to Indigenous communities so as to avoid unmet expectations.
Stay Tuned for Updates
As Justice Minister David Lametti stated, Bill C-15, as drafted, will not change Canadian laws and policies overnight. However, we will provide further updates as we learn more as Bill C-15 works its way through the legislative process.
Footnotes
2 Calls to Action of the Truth and Reconciliation Commission of Canada and Calls for Justice arising from the National Inquiry into Missing and Murdered Indigenous Women and Girls.
6 Update on Bill 41: With DRIPA as Law, What Can We Expect Next? | Knowledge | Fasken.
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