Key concepts in the UN Declaration Act

Assessment of consistency with the UN Declaration

Some Indigenous partners identified public servants’ understanding of section 5 of the UN Declaration Act on taking all necessary measures to ensure consistency between federal laws and the UN Declaration as being fundamental to bringing about the systemic change the UN Declaration calls for. Numerous partners voiced their frustration at perceived pushback from public servants related to engagement on legislative and policy initiatives. They noted that public servants sometimes miss the point that all legislative and policy initiatives could affect rights, not just initiatives designed specifically for Indigenous peoples. They were of the view that training should reflect the view that the federal government should allow Indigenous partners themselves to determine how rights are affected and therefore whether and which Indigenous peoples need to be consulted. Several Indigenous partners stated these decisions on the first stage of assessment are not complete without Indigenous perspectives being taken into account and that the power imbalance is perpetuated when such decisions are made solely by government.

Consultation and cooperation

Indigenous partners recommend making Indigenous participation a part of every-day considerations. At the same time, several Indigenous partners voiced concerns that where they are engaged, public servants have an “inconsistent, wide-ranging spectrum on how they define consultation.” The lack of definition and common understanding, especially where Canada now has a legal obligation to consult and cooperate, is a concern for partners that should be addressed in trainingFootnote 3. Some partners expressed their frustration that the myriad of avenues through which public servants are meeting with partners in the regions—“working tables”, “discussion groups”, “conversations”, “tabletops”, and others—do not, in their perspectives, constitute consultation and cooperation. Indigenous partners suggested it would help increase public servants’ understanding if concrete examples of consultation and cooperation and co-development were included in training, with some emphasizing the importance of these examples being identified or validated by Indigenous partners.

In talking about who participates in consultation and cooperation, it was mentioned that training materials should address the distinction between rights holders and representative bodies. To ensure women and diverse populations are considered, Indigenous organizations recommended referring to the statement in the Preamble on this point, the related UN Declaration, and Action Plan Measures SP12, 69 and 70.

Specific recommendations were made that training materials emphasize visually that consultation and cooperation happens throughout the development of legislative and policy and that public servants be informed as much as possible by discussion with Indigenous peoples.

Indigenous partners emphasized that not all Indigenous peoples have the same values and or interests, which reinforces the need for distinctions-based and intersectional approaches and a need for processes to work through potentially conflicting views. This includes ensuring a gender-based lens. In addition, it is recommended that training develop participants’ understanding of the realities, rights and lived experiences of urban, off-reserve, and non-status Indigenous people. Such training would support more complete UN Declaration Act section 5 related consistency assessments and consultation and cooperation processes.

Understanding and advancing self-determination

Indigenous partners recommended that training should address the right to self-determination, including participation in decision-making aligned with the recognition of and respect for Indigenous rights and Indigenous peoples’ inclusion. This includes training on FPIC, where it applies and how to implement it, including in relation to the legislative process.

Some First Nations partners suggested it would be useful to specify that the notion of self-determination may be viewed differently by First Nations than for the Government of Canada and may even differ from one First Nation to another. This was echoed by a few Métis partners. This could be a good opportunity to have the voices of Indigenous legal scholars, organizations supporting non-status, off-reserve and urban Indigenous peoples, and voices of Elders and youth explain the concept and what it means to them, so public servants can benefit from hearing a range of perspectives.

Free, prior and informed consent

Partners recommended that the information provided in training about FPIC be more nuanced. Indigenous partners suggest the training should give more information on how FPIC is implemented in practice, ideally giving some real examples of where FPIC has been used with varying degrees of success. It should be acknowledged that there is, as of yet, no single accepted definition of FPIC and that this concept will evolve.

Provincial and territorial issues

The importance of understanding the federal and provincial dynamics that create opportunities or barriers to advancing Indigenous rights and how these could be addressed proactively was mentioned by Indigenous partners in diverse regions. Training should also include an overview of provincial and territorial efforts to implement the UN Declaration, highlighting different approaches in British Columbia, the Northwest Territories and Québec.

Action Plan and implementation of the UN Declaration Act

Indigenous partners suggested linkages should be made in training materials between the UN Declaration Act and the Action Plan to international human rights treaties ratified by Canada as there is some overlap between rights affirmed by Treaties and rights affirmed by the UN Declaration, including in relation to economic, social and cultural rights. There are also Action Plan Measures intended to help implement both.

Many suggested it would be helpful to add concrete examples of progress on the Action Plan Measures underway and to add a slide to show what has been done since the Action Plan was published. For instance, highlighting key next steps for implementing the UN Declaration, including the creation and work of the Action Plan Advisory Committee. Some Indigenous partners were curious to know how future educational material and tools will reflect court decisions. Others recommended building-in metrics on Indigenous participation into government initiatives, akin to Gender-Based Analysis Plus (GBA Plus).

Indigenous partners stressed that the UN Declaration and the UN Declaration Act need to continue to be present on public servants’ radars and voiced their concern that UN Declaration Act implementation could become another “check the box exercise”.