Bill C-15: What we learned report

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Contents

Executive Summary

On December 3, 2020, the Minister of Justice and Attorney General of Canada, with support from the Minister of Crown-Indigenous Relations, introduced Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples. Bill C-15 delivers on the Government of Canada’s commitment to introduce legislation to advance implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration) before the end of 2020. It also responds to the Truth and Reconciliation Commission’s Calls to Action 43 and 44 and to the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) Calls for Justice.

In support of the Government’s commitment to introduce legislation for the implementation of the UN Declaration, a series of virtual engagement sessions were held over a six-week period between September 30 and November 6, 2020 with First Nations, Inuit and Métis Nation leaders, Modern Treaty signatories, regional Indigenous organizations, Indigenous women’s organizations and Indigenous youth. The process also included virtual discussions with natural resource industry sectors and with all provinces and territories. Discussions with provincial and territorial governments took place within the usual framework of confidentiality and details of these discussions are not covered in this report.

In total, over 70 virtual sessions took place. The primary objective of the sessions was to seek feedback and advice on potential enhancements to a consultation draft of legislative text based on former Private Member’s Bill (PMB) C-262. The consultation draft included minor technical changes to former PMB C-262 for consideration.

Throughout the engagements, participants were invited to submit written feedback via a generic inbox managed by Justice Canada. While much of the feedback received included specific recommendations on the text of the consultation draft, participants also used the opportunity to share their views and recommendations on the development of an action plan. Over 50 written submissions with proposed recommendations on the consultation draft were received during the process. The majority of the submissions were from Indigenous peoples’ organizations.

In general, there was strong support for the UN Declaration and the Government’s intention and efforts to implement it in Canada. However, many involved in the engagements and discussions expressed concerns about the process, mainly with respect to the limited timeframe to review and provide meaningful comments on the consultation draft, as well as the desire for a more in-depth and inclusive process.

Despite these concerns, many sessions included rich and free-flowing discussions and participants provided extensive input on how to enhance the consultation draft. The recommendations included improved provisions in the preamble, such as references to inherent rights, the right to self-determination and self-government, and the importance of recognizing and respecting treaty rights. Many participants also recommended the inclusion of references to the National Inquiry into MMIWG and explicit references to youth, children, persons with disabilities, women and gender-diverse and Two-Spirit persons. Further, many participants expressed the importance of referencing the systemic discrimination and racism faced by Indigenous peoples, as well as sustainable development and climate change. Participants also provided input on the provision related to the production of annual reports on progress. The Government of Canada heard the importance of taking a distinctions-based approach to implementing the UN Declaration, including explicit references to the diversity of Indigenous peoples, as well as the identities, cultures, languages, customs, practices, rights and legal traditions of First Nations, Inuit and the Métis Nation. Many participants also emphasized the need to explore accountability, transparency and oversight measures as part of implementation.

Some participants expressed concerns that the consultation draft might limit or infringe the exercise of certain inherent rights. They also emphasized the need for adequate resources and capacity funding for Indigenous peoples to support the implementation of the legislation, once passed. The Government of Canada also heard views about the broad scope of the proposed legislation, the use of the UN Declaration in interpreting Canadian laws, and possible impacts on jurisdictional powers. The potential implications of free prior and informed consent, in the natural resource sector and beyond, were also a point of discussion.

The input received contributed significantly to Bill C-15, an enhanced Bill that remains firmly anchored in former PMB C-262 as its foundation. These enhancements include additional preamble text, including acknowledgement of inherent rights, gender diversity, the potential for implementation of the UN Declaration to contribute to supporting sustainable development, the importance of respecting treaties and agreements, and the need to take diversity across Indigenous peoples into account in implementing the legislation. Bill C-15 also includes, among other things, a purpose clause to express the key objectives of the legislation, the addition of certain definitions, as well as greater clarity with regard to the future content, development and tabling of the action plan and annual reports.

Introduction

On December 3, 2020, the Minister of Justice and Attorney General of Canada, with support from the Minister of Crown-Indigenous Relations, introduced Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples. Bill C-15 delivers on the Government of Canada’s commitment to introduce legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration) before the end of 2020. It also responds to the Truth and Reconciliation Commission’s Calls to Action (CTA) 43 and 44 and to the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) Calls for Justice. Further, federal legislation to implement the UN Declaration is consistent with Article 38 of the Declaration itself, which calls on States to collaborate with Indigenous peoples on appropriate measures, including legislative measures, to achieve the objectives it sets out.

The UN Declaration is a comprehensive international human rights instrument on the rights of Indigenous peoples around the world and was developed through the direct participation of Indigenous peoples, organizations and experts. In 2016, the Government of Canada endorsed the UN Declaration without qualification and committed to its implementation. This commitment acknowledges that Indigenous rights are human rights, and that implementing the UN Declaration will serve to protect and uphold Indigenous rights.

Through 24 preambular paragraphs and 46 articles, the UN Declaration sets out a broad range of collective and individual rights that constitute the minimum standards to protect the rights of Indigenous peoples and to contribute to their survival, dignity and well-being. These include rights relating to:

The UN Declaration and its implementation in Canada are of core importance to all Indigenous peoples and Canada as a whole. The UN Declaration is a valuable tool for developing strategies and taking action to ensure Canadian laws and policies in Canada meet the minimum human rights standards affirmed in it. It is also used regularly by UN human rights bodies to assess Canada’s human rights performance.

In 2016, Member of Parliament, Romeo Saganash, introduced Private Member’s Bill (PMB) C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, which was studied extensively and passed by the House of Commons. However, it was not passed by the Senate before the Parliamentary session concluded in June 2019. At that time, the Government of Canada committed to introducing similar legislation as a Government bill, building on the notable support for former PMB C-262, indicating that it would be the “floor” for future legislation.

As stated in the 2019 and 2020 Speeches from the Throne, the UN Declaration is key in advancing reconciliation in Canada. This reflects the Truth and Reconciliation Commission’s CTA 43 and 44, which call for the implementation of the UN Declaration as the framework for reconciliation and the National Inquiry into MMIWG Calls for Justice.

While implementation of the UN Declaration will take time, existing Canadian laws already reflect many of the rights affirmed in the UN Declaration. For example, this includes section 35 of the Constitution Act, 1982, the equality rights provision in section 15 of the Charter, and the non-discrimination protections provided by the Canadian Human Rights Act, as well as specific legislation such as that relating to Indigenous languages, Indigenous child and family services, and Indigenous participation in environmental impact assessments. However, Indigenous peoples and UN human rights bodies have called on Canada to improve its performance and ensure greater compliance with the UN Declaration. In this regard, the Government of Canada believes that a federal legislative framework for implementing the UN Declaration would build upon and strengthen existing domestic recognition.

As the preamble and clause 4 of Bill C-15 affirm, Canadian laws should be interpreted in light of the UN Declaration. However, Bill C-15 also recognizes that fully aligning federal laws with the UN Declaration will, in some cases, require making amendments to federal laws or developing new laws and would be done in consultation and cooperation with Indigenous peoples, as stated in clause 5 of the Bill. Any amendments to existing laws or the development of new laws would proceed through the usual legislative process.

Bill C-15 provides a framework for this process to occur over time, through ongoing consultation and cooperation with Indigenous peoples. The Bill requires the development of an action plan and measures to ensure existing federal laws are consistent with the UN Declaration. It also requires the Government to consider the UN Declaration when developing new legislation and policies, or revising existing policies and amending legislation.

Consistent with what we learned throughout our engagement on the consultation draft, Bill C-15 is fundamentally about improving the lives of Indigenous peoples and protecting and promoting Indigenous rights as human rights, including rights to self-determination, self-government, equality and non-discrimination, as a basis for shaping an even stronger relationship with Indigenous peoples. It can also play an instrumental role in addressing systemic racism and discrimination and the impacts of colonization experienced by Indigenous peoples.

Engagement Process Overview

In December 2019, the Minister of Justice and Attorney General of Canada, with the support of the Minister of Crown-Indigenous Relations, was mandated by the Prime Minister to introduce co-developed legislation to implement the UN Declaration by the end of 2020. In June 2020, further direction was given to undertake engagement to develop legislation that builds upon PMB C-262. The September 23, 2020, Speech from the Throne reinforced the commitment to introduce legislation on the UN Declaration by the end of December 2020. To this end, the Assembly of First Nations, the Métis National Council and the Inuit Tapiriit Kanatami, and other Indigenous peoples’ organizations provided technical input.

The purpose of the engagement process was to seek the views of Indigenous peoples on a proposed legislative framework to implement the UN Declaration in Canada. The information enclosed within represents a summary of the views, considerations and proposals raised during the course of the engagement sessions with Indigenous partners and groups. It is not intended to capture all comments raised nor does it attribute any of the views, considerations and proposals to particular individuals or organizations. In addition to the engagement process with Indigenous partners and groups, other discussions were held with Industry sector stakeholders and with provinces and territories to share information and seek their views.

The COVID-19 pandemic required the Government to conduct its engagement sessions and discussions virtually. Building on the momentum and support from Indigenous peoples generated from the engagements on former PMB C-262 and its thorough study in the previous Parliament, a targeted engagement process was used to canvass a range of views from rights holders, Indigenous peoples’ organizations, Indigenous women, Indigenous youth, 2SLGBTQQIA+ Indigenous persons and urban Indigenous people. In addition, the engagement process included discussions with the natural resource industry sector, and provinces and territories. Discussions with provincial and territorial governments took place within the usual framework of confidentiality and details of these discussions are not covered in this report.

Many participants raised significant concerns with respect to the compressed engagement timeline, often voicing frustration and disappointment with the limited opportunity to review and provide feedback on the consultation draft prior to the Bill’s introduction. In addition, some participants expressed concern around the breadth of organizations and groups involved in the process, indicating that it did not sufficiently reflect the views of all rights holders and Indigenous peoples. Further, some participants raised concerns regarding the lack of funding provided to Indigenous partners and groups to support their involvement in the engagement process.

At the same time, the majority of participants also acknowledged the urgency of Canada taking concrete measures to align its laws – as well as its consultation and engagement processes – with the UN Declaration and section 35 of the Constitution. While not a full answer to the process concerns raised, this is very much the work that Bill C-15, if adopted, would require the Government of Canada to do.

Consultation Draft

The consultation draft (Annex A) closely resembled PMB Bill C-262 and provided a starting point for engagement. The sessions focused on seeking potential enhancements to the consultation draft, which was based on former PMB C-262, with minor technical changes.

The consultation draft included a preamble, which set out facts, principles and other statements relevant to understanding the body of the legislation, followed by six proposed clauses:

Engagement

Virtual engagement sessions took place with First Nations, Inuit and Métis Nation leaders, Modern Treaty and self-governing partners, regional Indigenous organizations, Indigenous women’s organizations and Indigenous youth (Annex B). These sessions contributed to substantive additions to the final legislative draft, including references to systemic discrimination, review and recognition and respect for Treaty rights.

The process also included virtual discussions with natural resource industry sectors (Annex C) and with all provinces and territories. Some Indigenous governments and organizations also conducted engagement sessions that complemented Government-hosted sessions. In some cases, government officials were able to participate in such events to share information and benefit from hearing views of participants first hand. Further, engagement participants and provincial and territorial governments were invited to submit written feedback on the consultation draft. Between October and November 2020, over 50 written submissions were received, with the majority received from Indigenous peoples’ organizations.

The following provides a breakdown of the Government-hosted engagements and other discussions on the consultation draft. A total of 72 sessions were held.

What We Learned – Engagement with Indigenous Partners

Generally, there was strong support for the UN Declaration and efforts to implement it in Canada. Many groups were pleased to see Canada commit to legislation as a cornerstone and roadmap for continued collaboration with Indigenous peoples and improving human rights performance. Engagement participants acknowledged how the proposed legislation could foster harmonious and cooperative relations and contribute to reconciliation in Canada.

Many First Nations, Métis Nation and Inuit participants highlighted the UN Declaration’s role and potential to better Canada through advancements in sustainable development, addressing climate change and fighting discrimination, including systemic discrimination and racism faced by Indigenous elders, youth, children, persons with disabilities, women, men and gender-diverse and Two-Spirit persons. However, as highlighted previously, participants also raised significant concerns with respect to the compressed engagement timeline and the limited opportunity to review and provide feedback on the consultation draft, prior to the Bill’s introduction.

Summary of Comments

Theme 1 – Recognizing Indigenous rights and adopting a distinctions-based approach

Many participants highlighted the importance of acknowledging the diversity of Indigenous peoples – First Nations, Inuit and the Métis Nation – and the need for the legislation to adopt a distinctions-based approach to implementation and to consider their distinct languages, cultures, customs, practices, rights, legal traditions and other differences throughout its implementation. This input was consistently heard from the Assembly of First Nations, the Métis National Council and the Inuit Tapiriit Kanatami, as well as many other national and regional groups from which we heard. A few participants outlined the need for their sovereignty to be reflected in the legislation—not only their diversity. Some proposed the language in British Columbia’s Declaration on the Rights of Indigenous Peoples Act, relating to the diversity of Indigenous peoples, be adopted.

Several participants raised questions about how the definition of Indigenous peoples would align with “Aboriginal peoples of Canada” as set out in section 35 of the Constitution Act, 1982. Some also requested that reference be included to residency and geography to better reflect the realities of urban Indigenous peoples, relative to those on reserve or in rural and remote communities, as well as the realities of Indigenous peoples whose traditional territories straddle the Canada-US border.

A number of participants, particularly from First Nations, raised the importance of respecting and promoting the rights affirmed in treaties, as was the need to ensure the legislation is not applied in a manner that compromises Indigenous rights recognized and affirmed in section 35 of Constitution Act, 1982. To this end, some concerns were expressed that legislation would somehow undermine Treaty rights and relationships. Further, some participants suggested the inclusion of provisions that highlight the importance of honouring and protecting Indigenous peoples’ rights and requested clearer language that would enable the Government of Canada to enter into agreements or constructive arrangements with Indigenous governing bodies to advance and facilitate implementation of the UN Declaration.

Further, many participants called for a preamble that acknowledges both collective and individual human rights, and also clearly reflects the inherent rights of Indigenous peoples, including the right of self-determination and self-government, derived from their political, economic and social structures as well as their cultures, language, histories, traditions, right to land, resources and territories and other characteristics. During the roundtable with Indigenous youth, participants proposed including a definition of self-determination in the legislation.

While many felt that the proposed legislation could enhance and reinforce inherent rights, some participants expressed concerns that it could limit or minimize the exercise of certain inherent rights. Some also raised concerns in relation to Article 46 of the UN Declaration as a potential barrier, given the perceived power it gives to states to limit the exercise of rights outlined in the UN Declaration

One regional group suggested the creation of a “knowledge committee” to provide guidance and advise on what inherent and treaty rights really means to help ensure the proposed legislation does not diminish rights.

Theme 2 – Strengthened and inclusive language

Indigenous peoples’ organizations called for strengthened language throughout the preamble and consultation draft generally, suggesting that some of the language was vague and ambiguous. There was a call to clarify the purpose of the proposed legislation and its scope, application and interaction with other federal laws. Some requested clearer language regarding the role that the UN Declaration would play in interpreting Canadian laws, in particular the Constitution. Others suggested the proposed legislation should clearly reflect that the legislation would not have direct legal effect but rather affirm the rights set forth within and to continue being used as a source by the courts, lawmakers and policy practitioners to interpret provincial and federal laws.

We also heard numerous calls for the use of more inclusive language in the preamble from First Nations, Inuit and the Métis Nation throughout the proposed legislation, including the addition of explicit references to women, girls, gender-diverse and 2SLGBTQQIA+ individuals and elders. Indigenous youth participants also felt strongly about inserting more inclusive language that reflects gender and sexual diversity, noting the absence of such language in Article 22 of the UN Declaration, which fails to explicitly mention transgender and Two-Spirited individuals, for example.

There was repeated emphasis on the need to include reference to the National Inquiry into MMIWG’s Final Report’s Calls for Justice, as well as reference to the Truth and Reconciliation Commission’s CTAs. Some participants proposed clearly highlighting the difficulties experienced by marginalized groups and the discrimination that Indigenous women and girls have long endured. Further, many called for explicit references to the historic and ongoing injustices suffered by Indigenous peoples, stemming from colonization and dispossession from their lands, territories and resources.

Many also called for strengthening the preamble by addressing the impacts of climate change on Indigenous peoples and their role in contributing to sustainable development, including references to the United Nation’s Transforming our World: 2030 Agenda for Sustainable Development as the most significant international instrument in their view.

Participants strongly emphasized the importance of engaging with and seeking the views of Indigenous women, girls, gender-diverse and 2SLGBTQQIA+ individuals, persons with disabilities and elders on all matters affecting Indigenous peoples, and their central role in contributing to the implementation of the legislation.

Theme 3 – Implementation and development of an action plan

The need for a coordinated approach across all levels of government for the UN Declaration’s implementation was raised regularly throughout the engagements. Several suggestions for changes were received, including additional details on implementation and a more robust provision on the development of an action plan, including defining its process, objectives and identifying a non-exhaustive list of matters that would be addressed. We also heard the importance of developing an action plan that adopts a distinctions-based approach and is developed through a gendered lens that examines the experiences of women, girls, and 2SLGBTQQIA+ people.

Participants suggested that the proposed legislation should clearly reflect that implementation of the UN Declaration in Canada should include measures to address social inequities, prejudice, and anti-Indigenous racism and all forms of discrimination against Indigenous peoples, including systemic discrimination, and discrimination impacting women, men, youth, elders, persons with disabilities and gender-diverse persons and Two-Spirited persons. Several participants suggested establishing and including in the proposed legislation reasonable timelines for the action plan’s development and for periodic updates of the action plan to Parliament.

Many participants noted that the action plan would provide an opportunity to identify and address the gaps in education, employment, housing, food security, health care, child welfare and safety—all of which contribute to the inequalities Indigenous people face, especially among Indigenous women. Participants also provided feedback with respect to implementing measures that support the maintenance of Indigenous culture and language. Moreover, the Government heard from some that the action plan could provide an opportunity to develop a shared understanding of free, prior and informed consent.

Participants stressed the importance of developing the action plan in consultation and cooperation with Indigenous peoples across Canada to ensure it reflects their unique rights and needs, and to adopt strategies that could help facilitate meaningful engagement in this regard. Some identified the need to clearly indicate that the action plan would be co-developed with Indigenous peoples, and to adopt a set of key principles, in conjunction with Indigenous peoples, to help guide its development. Some Indigenous youth expressed the importance of applying a Gender-Based Analysis Plus and intersectional lens throughout engagement on implementation to account for the diversity of Indigenous communities (e.g., on reserve, off reserve, urban, remote communities).

With respect to the implementation and development of the action plan, some participants expressed capacity concerns such as the availability of funding and resources to support implementation and facilitate meaningful and accessible engagement (especially in a global pandemic context) that empowers the participation of smaller Nations and communities. Some also expressed concerns around the implementation of the UN Declaration in Canadian law generally and questioned whether it would actually help Canada achieve the objectives of the Truth and Reconciliation Commission’s CTAs.

Federal officials heard the importance of the Government of Canada working collaboratively with provincial and territorial governments to implement the UN Declaration, with some participants calling for proposed language that clearly indicates that a whole-of-government approach is required.

Similarly, several participants expressed concerns around the implications of the proposed legislation on provinces and territories and questioned how the Government of Canada would encourage them to effectively implement the legislation in their jurisdiction. Participants called for the Government to take an active leadership role in this regard (i.e., to compel provinces and territories to implement the UN Declaration through the legislation). Various participants, notably those from BC, also called for clarity that the proposed federal legislation and action plan would not impede or delay provincial efforts to implement UN Declaration. Some pointed to the value of building from the lessons learned from BC’s experience with implementation.

Indigenous youth also highlighted the vital role that the education system could play in raising awareness of the UN Declaration, the Truth and Reconciliation Commission’s CTAs as well as the National Inquiry into MMIWG Calls for Justice. They further emphasized the importance of accessible and plain-language educational materials to inform Canadians of different backgrounds about the Declaration itself, acknowledging its importance to all Canadians—not only Indigenous peoples.

Theme 4 – Consistency between federal laws and the UN Declaration

Many supported including a consistency clause, and acknowledged it as a necessary component in to order to implement the UN Declaration. Clause 4 of the consultation draft required the Government to work in consultation and cooperation with Indigenous peoples to ensure federal laws are consistent with the UN Declaration, but some were critical about the lack of detail. Participants expressed the importance of improving the language and the need to define and communicate the process that would be undertaken to align federal laws with the UN Declaration. Some participants recommended broadening the scope to include all policies and administrative measures—not just federal laws—and emphasized the importance of transparency throughout the process and setting a timeframe to implement the commitment.

Participants generally acknowledged that undertaking such a commitment would involve all federal ministers and departments, and that a solid procedure would be required for its successful execution. They called for a coordinated and well-articulated whole-of-government approach, undertaken in consultation and cooperation with Indigenous peoples. Some participants highlighted laws or policies that they believed require review, including CIRNAC’s Inherent Rights Policy, 1996, the Department of Justice Act, the Indian Act and the Interpretation Act.

A few groups recommended additional wording to clause 4 of the consultation draft in order to give power to the courts to strike down federal laws that are found to be inconsistent with the UN Declaration, or to clearly indicate that the UN Declaration would prevail in the event of inconsistency.

Theme 5 – Clarity around free, prior and informed consent

A number of participants wanted to further examine the meaning and application of free, prior and informed consent and how this would be interpreted in the Canadian context, including in relation to land and natural resource development and other matters affecting Indigenous peoples and their rights. Participants repeatedly noted that free, prior and informed consent was about respectful and effective processes for achieving consensus. Some suggested consideration of provisions to facilitate its implementation, including the idea of provisions for the development of agreements and arrangements.

Throughout the engagements, participants called for clarity around the issue of free, prior and informed consent and the need to establish a shared understanding with Indigenous peoples of how it would be implemented. Participants also noted the importance of continuing discussions to achieve a process that supports Indigenous rights and to identify opportunities in the development of the action plan. Some also called for the development of tools to support the requirement’s consistent implementation. A few groups suggested the Government of Canada consider the approach taken in British Columbia’s legislation (Declaration on the Rights of Indigenous Peoples Act), which is based on government entering into agreements with Indigenous governing bodies with respect to joint decision-making.

In the context of land and natural resource development, we also heard from a few participants that the Government of Canada should explore opportunities to share tax revenues generated from these projects with Indigenous governments, for example, by developing a national revenue sharing policy.

Theme 6 – Government of Canada accountability and dispute resolution mechanism

A common theme throughout the engagement process across First Nations, Inuit and Métis Nation participants was to include language that would ensure greater accountability for Canada’s commitment to implementation of the UN Declaration. Many participants felt that stronger language was needed to hold the Government of Canada accountable to fulfilling its commitments. In this vein, participants proposed specific timelines be included for the Government to align federal laws with the UN Declaration, create the action plan, and for the development and submission of annual reports to Parliament that would measure progress on implementation.

The consultation draft provided a 20-year timeframe with respect to the reporting period for annual reports to Parliament; however, the majority of participants, including youth during the virtual roundtable, indicated that such a requirement should not be limited by a specific timeframe. Participants expressed concern over a future government that is not supportive of the process once the timeframe has passed, and indicated that annual reporting on progress should continue indefinitely, or until a mutual agreement between Canada and Indigenous peoples has been reached that such reporting is no longer required.

Some participants expressed the need for a robust reporting process and recommended that annual reporting be led by an independent ombudsperson or similar independent entity, or by a standing committee on the UN Declaration to the House of Commons, in order to ensure its accuracy.

Almost all participants that shared views with respect to annual reports also indicated the importance of developing them in consultation and cooperation with Indigenous peoples, and that the process take place in a transparent manner. To help measure progress, it was suggested that communities should decide and define “clear measurable indicators” that can be assessed to determine the impact that implementation is having on the socio-economic realities faced by Indigenous peoples.

Many participants also questioned the lack of a dispute resolution mechanism and oversight and enforcement measures in the consultation draft, and called for the immediate establishment of a recourse, remedy or other oversight mechanism. This point was strongly emphasized by Inuit, but similar concerns were shared by many. In their view, a lack of such a mechanism or oversight could diminish the importance of implementing the UN Declaration and potentially negatively affect cooperation with Indigenous peoples, as the Government of Canada would be accountable only to itself. A few participants proposed the establishment of a dispute resolution mechanism outside of Canada, while others indicated that an independent and joint Crown-Indigenous body be created as an alternative to the traditional court system to facilitate access to justice in a timely manner.

Discussions with Industry Sectors

Summary of Comments

As a collaborative effort, Natural Resources Canada (NRCan), with support from Justice Canada and CIRNAC, hosted four natural resources industry roundtable sessions to share information on the proposed legislation and to better understand and reflect their perspectives. These sector-specific sessions brought together representatives from the Assembly of First Nations, Inuit Tapiriit Kanatami and the Métis National Council, industry representatives from the minerals and metals, clean energy, forest, and petroleum sectors, and government officials from various departments including the Impact Assessment Agency (IAA).

At each roundtable, the different sectors brought a unique perspective and contributed to the dialogue on how the Declaration can be used as a framework for reconciliation that builds upon the experiences and existing relationships between industry and Indigenous peoples across the natural resources sectors.

Theme 1 –The process for harmonizing federal laws and policies with the UN Declaration

Industry representatives sought clarity on the timeline for implementing the UN Declaration and the harmonization of existing federal laws and policies. Representatives were concerned that legislation would have an immediate effect on existing laws and regulations that impact their operations upon receiving Royal Assent.

Theme 2 – Understanding free, prior and informed consent

During these discussions, participants discussed how free, prior and informed consent is a fundamental safeguard for the collective rights of Indigenous peoples. It is an aspect of Indigenous peoples’ right to self-determination, which is central to the UN Declaration.

Free, prior and informed consent is commonly discussed in the natural resource development context and was inevitably a discussion point of significant interest across all roundtables.

When discussing project approvals, participants shared that free, prior and informed consent is often mischaracterized by some as a veto over decisions by non-Indigenous governments. This mischaracterization could potentially pose a risk to a potential investment in the natural resource sector, if such a characterization were accurate. During roundtables, participants discussed the interpretation of free, prior and informed consent, and acknowledged that it is not an absolute veto; rather the path to securing it is through partnerships and building meaningful relationships with Indigenous peoples.

Industry expressed the desire for clarity in the difference between free, prior and informed consent and the constitutional duty to consult and, where appropriate, accommodate. They also sought guidance around the operationalization of consent, such as from whom it should be sought (e.g., hereditary and elected leadership), and what happens when not all of the Indigenous peoples being consulted provide consent. In addition, some industry participants raised concerns of future judicial reviews and the potential for Indigenous peoples to use the legislation and free, prior and informed consent to challenge major project approvals.

National Representatives of the Indigenous Peoples and Nations in Canada underscored to industry that the requirement is a means for the realization of the right to self-determination and more broadly represents the spirit of partnership and mutual respect called for in the UN Declaration.

Many industry representatives understood the contextual nature of free, prior and informed consent and that its implementation can take many forms, as it already has in various examples across the sectors. The majority of participants generally agreed that the operationalization of the requirement, or aspects thereof, could be included as part of the action plan to be developed as part of the legislation.

Theme 3 – Process for developing and implementing the action plan

In each roundtable session, industry representatives expressed interest in being part of future discussions involving the creation of the action plan, with some citing recent experience in developing internal policies to align with the UN Declaration’s objectives. National Representatives of the Indigenous Peoples and Nations reiterated that the action plan should prioritize and be led by Indigenous peoples, and that implementing the UN Declaration extends beyond natural resources. Indigenous businesses and industry associations that participated in the discussions expressed an interest in playing a key role in this space as the Government of Canada explores new and innovative ways to implement the UN Declaration.

Participants raised that in conjunction with the legislation, capacity funding should be provided to Indigenous peoples to ensure their meaningful participation in developing the action plan. They also reiterated that engaging voices from across the country would be critical. Further, participants raised concerns surrounding the current capacity of the federal Government and Indigenous governments, as well as Indigenous communities and organizations, in order to effectively participate in engagement and consultation in the area of natural resource development, including as the UN Declaration is implemented. Industry flagged that the Government should increase staffing capacity and knowledge of the UN Declaration to facilitate its implementation on the ground. The action plan should also consider providing capacity funding for Indigenous proponents of major projects to engage in the consultation and engagement processes. National Representatives of the Indigenous Peoples and Nations echoed comments made by industry, reiterating the importance of capacity funding for many communities who often face consultation fatigue.

Theme 4 – Role of provinces and territories

A common question raised by industry in all of the sessions was how the proposed federal legislation would interact with existing provincial and territorial jurisdictions, as well as consider the Natural Resources Transfer Act (NRTA). Participants also raised concerns about a fragmented approach to implementing the UN Declaration as varying legislation and policies are created across the country. For example, in 2019, British Columbia became the first province to pass legislation (Declaration on the Rights of Indigenous Peoples Act) to implement the objectives of the UN Declaration and the province is still in the process of developing its own action plan.

Other Comments

Participants representing various industries raised specific concerns as well. For example, the discussion at the clean energy roundtable focused more on systemic barriers for Indigenous participation and how varying polices for the sector between provinces and territories could result in the inconsistent application of the UN Declaration and free, prior and informed consent. The forestry roundtable highlighted how the sector has been a trailblazer when it comes to long-term relationships with Indigenous communities and joint management. Given how the forestry sector is regulated by provinces and territories, participants wanted to know how federal legislation would impact those jurisdictions.

Conclusion

The engagement process on the consultation draft was vital in the development of Bill C-15. The Government of Canada introduced Bill C-15 – an enhanced version of PMB C-262 – on December 3, 2020, reflecting a significant contribution of Indigenous peoples to the final draft Bill. While there is much to be done, the introduction of Bill C-15 represents an important step in the shared journey of reconciliation and is one that would not have been possible without the frank dialogue and input received throughout the engagements. Since the introduction of Bill C-15, the Government of Canada continues to receive feedback, which will continue to be reviewed and considered.

During engagement sessions, participants offered a diversity of perspectives and recommendations that helped shape the development of Bill C-15. As outlined on the UN Declaration website launched on introduction of Bill C-15, these enhancements include:

The implementation of the UN Declaration in Canada is a process that will take time. As this engagement process reminded us, one of the key challenges we continue to face – and that this proposed legislation is intended to help address – is the need for effective mechanisms through which the Government and Indigenous peoples can work cooperatively to develop legislation. The Government of Canada is committed to building on this engagement process to improve in this area. Working together to progress on reconciliation to implement the UN Declaration will help us all build a brighter future and a better Canada for current and future generations.

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