Background

In 2007, after almost 25 years of deliberation and Indigenous leadership, the United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration). The Declaration is a comprehensive international human rights instrument on the rights of Indigenous peoples around the world. It sets out the minimum standards for the survival, dignity and well-being of Indigenous peoples, including rights related to governance, health, community, culture, language, lands, territories and resources, and education.

In 2014, at the World Conference on Indigenous Peoples, all 193 member states of the UN renewed their commitment to the Declaration. The outcome document from the conference commits states “to taking, in consultation and cooperation with indigenous peoples, appropriate measures at the national level, including legislative, policy and administrative measures, to achieve the ends of the Declaration and to promote awareness of it among all sectors of society, including members of legislatures, the judiciary and the civil service.”

How a country chooses to implement the Declaration, and the rights set out in it, depends on each country’s unique circumstances. The Government of Canada decided to advance implementation of the Declaration at the federal level through legislation. 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, following a series of virtual engagement sessions with First Nations, Inuit and Métis Nation leaders, modern treaty signatories, regional Indigenous organizations, Indigenous women’s organizations and Indigenous youth.

The United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA or the Act) came into force on June 21, 2021. Developed in partnership with Indigenous peoples, the Act provides a framework for the generational and transformational work required to implement the rights in the Declaration at the federal level.

Although the Minister of Justice is the lead minister responsible for implementation of the Act (pursuant to an Order in Council), the Ministers of Crown-Indigenous Relations and of Natural Resources also support this work. In addition, the Act expressly directs the Government of Canada as a whole, and other federal ministers with roles in the implementation of the Act. The implementation of the Act is a priority for the federal government, as reflected in the mandate letters issued in 2021. Thus, implementing the Act and advancing Indigenous rights is a whole-of-government responsibility in partnership with Indigenous peoples.

The Act requires the Government of Canada to fulfil three interrelated obligations in consultation and cooperation with Indigenous peoples:

  1. Section 5: Take all measures necessary to ensure the laws of Canada are consistent with the Declaration.

This includes measures to ensure that both existing laws and future laws are aligned with the rights and principles in the Declaration and help contribute to achieving its objectives.

While section 5 is particularly directed at federal legislation and regulations, the preamble of the Act also emphasizes that the Government of Canada is committed to taking effective legislative, policy and administrative measures, in consultation and cooperation with Indigenous peoples, to achieve the objectives of the Declaration, which can go well beyond the specific requirements of section 5.

In contrast to section 6, section 5 does not set out a timeframe for implementation. Implementation of section 5 came into force immediately upon royal assent and is ongoing, in consultation and cooperation with Indigenous peoples.

  1. Section 6: Develop an action plan by June 2023 to achieve the objectives of the Declaration.

The action plan must include, but is not limited to, measures that:

  1. Section 7: Prepare annual reports on progress.

These annual reports provide transparency and accountability for the work to implement the Act as it progresses.

In September 2021, the United Nations Declaration Act Implementation Secretariat (the Secretariat) was formed within Justice Canada’s Indigenous Rights and Relations Portfolio to lead on the development of the federal UNDA Action Plan and Annual Reports in consultation and cooperation with Indigenous peoples and in coordination with all implicated federal departments.

The Secretariat is composed of program and policy officers, analysts and researchers, and administrative support staff who have conducted background research as well as planned, organized, facilitated and followed up on numerous sessions with Indigenous peoples across the country.

Background research consisted of reviewing various publicly available documents produced by Indigenous partners in recent years to gain a preliminary understanding of their positions and priorities. The research complemented the engagement sessions, which allowed the Secretariat to validate and deepen its knowledge of Indigenous priorities and proposed measures for consideration into the Action Plan.

UNDA Consultation and cooperation process

In December 2021, Justice Canada launched a two-phased broad, inclusive and distinctions-based consultation and cooperation process with Indigenous peoples to advance the implementation of the Act. The first phase involved identifying priorities and potential measures for a draft Action Plan, while the second phase will consist of validating proposed measures and identifying any gaps and additional measures. This process includes the following partners:

From December 2021 to December 2022, Justice Canada conducted more than 200 virtual bilateral information sharing and engagement meetings. In November 2022, Justice Canada also hosted 20 regionally-based virtual multilateral information sessions to provide an update on the Act’s implementation and to ensure Indigenous partners have the necessary information to articulate and convey priorities for possible inclusion in the draft Action Plan. In addition to the bilateral meetings and discussions, the multilateral sessions gathered more than 100 participants, from more than 60 Indigenous rights holders, nations and communities, representing tens of thousands of Indigenous people in Canada.

In addition, the Métis National Council (MNC) and Inuit Tapiriit Kanatami (ITK) agreed to convene a Shared Priorities Table with Justice Canada to address cross-cutting Indigenous priorities and to facilitate coordination in relation to the Act’s implementation. The Assembly of First Nations (AFN) has observer status at these meetings.

Although most sessions took place virtually due to ongoing Coronavirus disease (COVID-19) health concerns, some in-person gatherings were also held, such as partners’ Annual General Meetings, and others organized by the Secretariat, including a series of meetings in Manitoba with the Indigenous Rights and Relations Portfolio Assistant Deputy Minister and various Indigenous partners. This allowed Justice Canada to connect with some groups with whom we had not yet otherwise had the chance to engage and discuss.

The consultation and cooperation work to date has been premised on respect and support for the interrelated and interdependent rights of Indigenous peoples to self-determination and participation in decision-making in matters affecting their rights. The joint work to advance implementation of the Act will continue to be undertaken in a manner that has co-development with Indigenous peoples as a core principle, while recognizing that we are continuing to develop a shared understanding of what meaningful co-development as part of broader processes on consultation and cooperation looks like across a range of contexts.

Indigenous-led consultations

To support Indigenous participation in the process, a call for proposals was launched to provide funding for Indigenous-led consultations with their citizens, members and communities to identify priorities and potential measures to be included in the Action Plan. The call for proposals opened, on December 10, 2021, and closed on April 15, 2022.

The decision to conduct an open call for proposals reflected the need for broad and inclusive engagement with Indigenous rights holders and their representative organizations across the country and was responsive to feedback from Indigenous partners seeking a more in-depth and wide-ranging process than that which was undertaken for the development of Bill C-15.

To support Indigenous-led consultations, Justice Canada created an engagement kit and other supporting materials comprised of background information on the Act, the Declaration and other resources to help guide discussions and input related to sections 5, 6, and 7 of the Act.

When the call for proposals was launched, Justice Canada did not yet have the administrative authority to manage the funding. For that reason, Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) and Indigenous Services Canada (ISC) worked with Justice to ensure a broad range of proposals were supported and that funds were disbursed to successful applicants. Two hundred and ten (210) Indigenous nations, organizations, governments and groups across the country submitted proposals totaling close to $100 million. In total, 149 Indigenous partners across Canada were funded (Annex A) with over $26.33 million made available through the contribution program.1 Although the call for proposals deadline was extended, and despite the Secretariat’s best efforts to ensure broad outreach, we recognize that some Indigenous nations and communities were unable to apply due to lack of capacity.

Justice Canada regrets that funding delays occurred for many partners due to various factors, including its decision to extend the timeline for proposals. CIRNAC and ISC assisted by working to ensure that contribution agreements were signed as quickly as possible within the revised timelines. Justice Canada acknowledges that the funding delays impacted timelines for Indigenous-led consultations and the ability to fully participate in the UNDA consultation and cooperation process, especially for those partners for whom cash managing was not possible.

That said, with this support, numerous Indigenous-led consultations in various formats have taken place across the country, which provided Justice Canada the opportunity to hear from diverse partners about priorities and potential measures for potential inclusion in the Action Plan.

Online submission tool

In March 2022, Justice Canada launched an online submission tool available to self-identified Indigenous individuals, communities and organizations to provide them with an additional opportunity to communicate views and perspectives on the priorities to include in the Action Plan. The online submission tool was open until December 31, 2022, on the Canada.ca/Declaration website.

Respondents were invited to respond to a series of questions pertaining to sections 5, 6, and 7 of the Act, such as “Are there federal laws that you, or the organization you represent, would prioritize to ensure consistency with the Declaration? If yes, which one(s)?”and “What suggestions do you have regarding the monitoring of the action plan as well as the review and updating of the plan over the years?” Individuals could choose to respond to all the questions, or only a few.

At the time of writing, approximately 30 self-identified individuals and groups had provided comments through this channel. By making this tool available, Justice Canada sought to ensure that all Indigenous individuals could contribute to the development of the Action Plan, including those not affiliated to any organization, or otherwise not feeling represented by any group.

Following the publication of the draft Action Plan, the online submission tool will be updated to help facilitate broader access and Indigenous involvement in the second phase and to allow Indigenous individuals and groups to provide feedback on the draft Action Plan.

Footnotes

1 The proposals were assessed by a review committee composed of Justice and CIRNAC officials. Submissions were assessed in terms of their representation of section 35 rights holders as well as their governance capacity, population scope and geographic engagement reach. The cultural and linguistic profile of the organization and representation of diversity groups’ needs and priorities were also a key consideration. The committee also examined how the proposals reflected unique contributions and insights provided by different levels and sizes of Indigenous governance bodies and institutions, and how the proposal would contribute to concrete measures for inclusion in the Action Plan. Based on these criteria, 58 proposals were rejected, of which 5 Métis, 35 First Nations, 1 Urban, 1 Diversity, 3 Other Indigenous, and 13 Other. The last category comprises non-Indigenous organizations, individuals and private consulting firms that submitted proposals on their own behalf. No Inuit proposals were rejected. See Annex D for additional funding information.