Bill C-15: An Act Respecting the United Nations Declaration on the Rights of Indigenous Peoples

Questions and Answers

About the Declaration

Q. What is the United Nations Declaration on the Rights of Indigenous Peoples?

A. The United Nations Declaration on the Rights of Indigenous Peoples is a comprehensive international human rights instrument on the rights of Indigenous peoples around the world. Through 46 articles, it affirms and 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 Declaration is the result of almost 25 years of work and collaboration between UN member states and Indigenous peoples from around the world. Indigenous leaders from Canada played a significant role in its development, including the drafting and negotiating.

In 2007, a majority of member states adopted the Declaration at the United Nations General Assembly. In 2016, the Government of Canada endorsed the Declaration without qualification and committed to its full and effective implementation.

Q. Do UN member states have to implement the Declaration?

A. How a country chooses to respect and implement the rights described in the Declaration will depend on each country’s unique circumstances. Countries have a number of tools available to them to ensure that international human rights instruments and standards are reflected domestically. These include policies, directives, institutional processes and mechanisms, and legislation.

Consistent with the UN Charter, countries around the world have a duty to promote universal respect for, and observance of, human rights. The Declaration reaffirms that Indigenous peoples, both collectively and individually, enjoy all rights already recognized at the international level.

In Canada, international human rights standards are reflected in a range of processes, policies and legislation. In addition to the human rights protections provided by the Canadian Charter of Rights and Freedoms and human rights codes, our Constitution recognizes and affirms the Aboriginal and treaty rights of Indigenous peoples.

The Government of Canada believes that a legislative framework for implementing the Declaration federally would build on this recognition. This approach is consistent with 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 (Article 38).

Implementing the Declaration

Q. If section 35 of the Canadian Constitution already recognizes and affirms Aboriginal and treaty rights, why do we need to implement the Declaration?

A. Section 35 of the Constitution recognizes and affirms the rights of Indigenous peoples, including those set out in treaties signed with the Crown. Reconciliation with First Nations, Inuit and Métis is the fundamental purpose of section 35.

However, we have seen that constitutional provisions alone are not enough – we need to breathe life into them through action and commitment to the values they embody. We need to focus on achieving reconciliation and the recognition of rights outside litigation, which is by its nature an adversarial process. The Declaration can help us do this work with rights holders and others to ensure that Canadian laws protect and promote the rights of Indigenous peoples, consistent with the Declaration and section 35. Bill C-15 would provide a framework for the Government of Canada to implement the rights affirmed by the Declaration.

Q. How can Industry contribute to the implementation of the UN Declaration and Bill C-15?

A. Many industry sectors have already taken steps to embrace the Declaration in the context of their work with Indigenous peoples in Canada and elsewhere. This experience has lessons and best practices that we hope can provide important and useful input to federal efforts to implement the Declaration.

While C-15 does not include reference to a formal role for other stakeholders, including industry, in the development of this action plan, there will no doubt be opportunities to contribute. In particular, should the action plan lead to legislative or policy changes that are of interest to the natural resources sector, such changes would be subject to usual parliamentary and policy development processes, which would include opportunities for engagement.

Q. What actions have been taken since 2016 to implement the Declaration or reflect its principles in laws?

Elements of the Declaration are already reflected in a range of Canadian laws, policies and programs, for example, section 35 of the Constitution Act, 1982, the equality rights provisions of the Charter and the non-discrimination protections provided by the Canadian Human Rights Act. Since 2016, the Government of Canada has taken a range of important measures that contribute to renewed, respectful Crown-Indigenous relationships that align with both section 35 of our Constitution and the Declaration.

As of April 2020, there are nine federal laws that refer to the Declaration:

In addition, the Government of Canada has developed or updated policies and guidance to be consistent with the Declaration and Canada’s constitutional framework. These policies assist federal officials’ work whenever it involves Indigenous peoples and help to contribute to the implementation of the Declaration. Some examples are:

We also continue to work on developing, updating and improving policies to ensure that negotiations with Indigenous peoples are conducted in a manner consistent with our commitment to reconciliation. These updates will better align with the rights-based approaches we are currently using at discussion tables and with what we have learned from Indigenous partners.

The Government of Canada is also engaged in discussions with Indigenous partners at over 150 discussion tables across the country to explore new ways of working together to advance the recognition of Indigenous rights and self-determination. These discussions involve more than 500 Indigenous communities, with a total population of nearly one million people.

Q. What changes are contemplated to the machinery of government to effectively implement Bill C-15?

A. When Bill C-15 receives Royal Assent and comes into force, the Government of Canada will work in consultation and cooperation with Indigenous peoples to begin the preparation of the action plan and take measures to ensure that federal laws are consistent with the UN Declaration.

When Bill C-15 is passed, all federal departments will have important roles to play in implementing the legislation. As the Government of Canada considers the development of the action plan and the measures needed to ensure our laws are consistent with the Declaration in collaboration with Indigenous peoples, we expect some of the discussions will include identifying new, innovative processes and creative ways of working together. Strengthened partnerships will enhance our collective capacity to effectively implement Bill C-15 and ultimately, achieve reconciliation.

Engagement process

Q. When did the Government engage on this legislation and with whom?

A. Between June and November 2020, the Government of Canada met bilaterally with the Assembly of First Nations, Inuit Tapiriit Kanatami, and the Métis National Council to advance concrete amendments to PMB C-262. Thirty-three (33) sessions were held.

Between October and November 2020, the Government of Canada held 28 sessions with modern treaty and self-governing rights holders on a nation-to-nation, government-to-government basis as reflected in their agreements. We also met with other national and regional organizations as well as Indigenous women’s organizations and LGBTQ2S+ groups. A special virtual engagement session was held for Indigenous youth and Indigenous law students.

Between October and November 2020, the Government of Canada also held four discussion sessions with key industry sectors: minerals & metals, clean energy, forestry, and petroleum sectors. During this time, we also held four discussion sessions with provincial and territorial governments, two with Ministers and two with Deputy Ministers.

The Government of Canada also received over 50 written submissions of feedback and proposed text changes, including views and recommendations on the development of an action plan.

Q. Why was former Private Member’s Bill C-262 the basis or starting point for this new legislation? Why not start from scratch?

A. In 2016, the Government of Canada fully endorsed the Declaration without qualification and committed to its full and effective implementation. The Government then supported former Private Member’s Bill C-262; however, the Senate did not pass the Bill before the Parliamentary session concluded in June 2019. At that time, the Government committed to introducing similar legislation as a Government bill, indicating that PMB C-262 would be the floor for future legislation.

By using former PMB C-262, we built on the momentum and support from Indigenous partners generated as former PMB C-262 moved through Parliament. Not only did this provide a starting point for engagement, but it has resulted in a process for improving the legislative framework for the implementation of the Declaration.

Q. What did engagement focus on?

A. Engagement focused on potential enhancements to a consultation draft of the legislation, which was based on former Private Members Bill C-262. A consultation draft was shared during the engagement sessions in order to seek feedback to improve and amend the draft.

Q. What did you learn during the engagement sessions?

A. During engagement sessions, participants offered a diversity of perspectives and recommendations that helped shape the development of the legislative proposal. For example, we received input that:

With respect to the action plan, almost everyone emphasized the importance of further collaboration on its development, as well as specific timelines for its completion. With respect to goals, we learned the plan should address gaps in education, employment, housing, food security, health and well-being, child welfare and safety, all of which contribute to the inequalities faced by many Indigenous peoples.

The What We Learned Report is now publicly available on Justice Canada’s website, it outlines in greater detail the input we received during engagement sessions, which helped shape this Bill.

Q. What did the Government of Canada hear from Industry and is it reflected in the Bill?

A. Between October and November 2020, the Government of Canada held four roundtable sessions with key industry sectors.

These sector-specific sessions brought together the National representatives of the Indigenous peoples and Nations, industry representatives from the minerals and metals, clean energy, forest, and petroleum sectors, many of whom are already actively putting plans in place related to the Declaration.

The What We Learned Report is now publicly available on Justice Canada’s website, it outlines in greater detail the input we received during engagement sessions, which helped shape this Bill.

Q. Why was the engagement period not longer to allow for engagement that was more meaningful?

A. In 2019, the Government of Canada committed to introducing legislation by the end of 2020 to implement the Declaration. The Government also committed to build on the notable support for former Private Member’s Bill C-262, which was thoroughly studied in the previous Parliament. The COVID-19 pandemic also impacted our timelines for engagement. In addition, noting the context of a minority Government and after discussions with Indigenous partners, the Government of Canada felt it was important to table a bill as soon as possible.

Q. Will you post a “What We Learned Report” or make the engagement summary public?

A. Yes. The What We Learned Report is now publicly available on Justice Canada’s website.

Q. Did the engagement process fulfil the legal duty to consult?

A. The legal duty to consult and accommodate applies where the government contemplates conduct that might adversely affect asserted or established Aboriginal or treaty rights. While the Supreme Court of Canada has indicated that the legal duty to consult does not apply to the legislative process (Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765), the Government nevertheless undertook a broad engagement process with Indigenous peoples across Canada to inform the development of the Bill. This process was consistent with the consultation and cooperation called for in the UN Declaration itself.

Legislation overview

Q. What is the purpose of Bill C-15? Why does Canada need legislation?

A. The purpose of the legislation is to affirm the Declaration as a universal, international human rights instrument with application in Canadian law and to provide a framework for the Government of Canada’s implementation of the Declaration.

This framework would establish new accountability for the Government of Canada to work with First Nations, Inuit and Métis peoples to find new ways to protect, promote and uphold the human rights of Indigenous peoples in Canada, now and into the future. It would also bring clarity regarding the path forward for Indigenous peoples, communities, industry and all Canadians. A legislative framework would also further demonstrate the Government of Canada’s continued commitment to uphold the rights of Indigenous peoples now and in the future.

In this way, this Bill can also ensure the Declaration helps guide the reconciliation process as it relates to Canada’s legislative and policy processes. It would ensure that, moving forward, the laws of Canada reflect the standards set out in the Declaration, while also respecting Aboriginal and Treaty rights recognized and affirmed in the Constitution.

This legislation responds to the Truth and Reconciliation Commission Call to Action 43, which calls on all levels of government to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoplesas the framework for reconciliation. It also responds to the Missing and Murdered Indigenous and Women’s Inquiry Calls for Justice.

Q. What would the legislation do once passed by Parliament?

A. Once passed by Parliament, the legislation would create new requirements for the Government of Canada. It would require the Government of Canada, in consultation and cooperation with Indigenous peoples, to:

Moving forward, the laws of Canada would be required to reflect the standards set out in the Declaration, while also respecting Aboriginal and Treaty rights recognized and affirmed in the Constitution. The legislation would require the Government of Canada to report annually to Parliament on progress made to align the laws of Canada with the Declaration and on the development and implementation of the action plan.

This approach is consistent with the Declaration itself, which calls on states to collaborate with Indigenous peoples on appropriate measures, including legislative measures, to achieve the goals set out in the Declaration (Article 38).

Q. How would the action plan be developed?

A. When Bill C-15 receives Royal Assent and comes into force, the Government of Canada would begin to prepare the action plan in consultation and cooperation with Indigenous peoples. Bill C-15 requires that the action plan be tabled in Parliament as soon as possible and no later than two years after the Bill is passed (as amended by House of Commons Standing Committee on Indigenous and Northern Affairs - INAN). The action plan can then be renewed and updated as needed.

Q. What types of measures would the action plan include?

A. As written, the proposed legislation would require the action plan to include measures:

The action plan would also include measures for monitoring the implementation of the plan itself and for reviewing and amending the plan.

Q. Would the action plan be made public?

A. Bill C-15 would require the Government of Canada to table the action plan upon completion in each House of Parliament. Following this step, the Bill requires the plan to be made public.

Q. The purpose statement in clause 4 of Bill C-15 affirms the “Declaration” as a human rights instrument with application in Canadian law. Does that mean all laws of Canada or just federal laws? If the Declaration already has application in Canadian law, what changes do you anticipate to existing laws of Canada in the future?

A. Bill C-15 includes a purpose clause to address the application of the Declaration in Canadian law and to affirm the legislation as a framework for federal implementation of the Declaration.

With respect to anticipated changes to existing federal laws, this will be a collaborative process with Indigenous peoples and others to assess where changes to laws, policies and practices may be needed to better reflect the objectives of the Declaration. We expect this process to occur over time, and any future changes to federal law would be undertaken in cooperation with Indigenous peoples and go through regular policy development, engagement and parliamentary processes.

The purpose clause also recognizes that the Declaration has “application in Canadian law”. This means that the Declaration can be used to interpret and apply Canadian law, just like other international human rights instruments. In fact, the Declaration is already being used in this way. Bill C-15 is intended to recognize and affirm this role, without turning the Declaration itself into a “Canadian law”, which could create a lot of confusion and legal challenges.

If pressed on use of “Canadian law” vs “laws of Canada” in different provisions:

Clauses 2(3) and 4(a) both recognize the existing and well-established legal principle that international human rights instruments, like the Declaration, can be used to help interpret and apply Canadian laws. This principle applies to the interpretation of federal laws. It also applies to interpretation of the Constitution and provincial laws. These declaratory provisions do not transform the Declaration itself into a Canadian law with direct legal application – but reaffirm and acknowledge that it can be used, like other international instruments, to inform the interpretation of Canadian laws.

To be clear, Bill C-15 does not impose new obligations on provincial or territorial governments. This is evident from the clauses on Ministerial designation (clause 3), the Declaration as a framework (clause 4(b)), the consistency of laws (clause 5), the action plan (clause 6) and the reporting obligations (clause 7), which all speak to the roles and responsibilities of the federal government and/or federal Ministers.

The expression “laws of Canada” is used specifically in the context of the requirement to align federal legislation passed by the Parliament of Canada with the UN Declaration. The choice of “laws of Canada” is deliberate (along with its equivalent to “lois fédérales” in French) and is different from the more general language of “Canadian law” used in the provisions relating to the Declaration’s interpretive role.

Q. Would the legislation have the effect of making the whole text of the Declaration legally binding in Canadian domestic law?

A. If passed, the legislation would not give the Declaration direct legal effect in Canada beyond its existing role as a source for interpreting Canadian laws. Rather, it would affirm the Government of Canada’s commitment to sustained efforts and new processes to align laws with the Declaration over time. This is how the Declaration would be implemented federally going forward.

The Declaration recognizes that the situation of Indigenous peoples varies from region to region and from country to country, and that implementation of the rights it describes must respond to the specific and unique circumstances in each country, including Canada. As such, it provides flexibility to ensure rights are recognized, protected and implemented in a manner that reflects domestic circumstances, in consultation and cooperation with Indigenous peoples.

Q. How does the proposed legislation compare to former Private Members Bill (PMB) C-262?

A. Following discussions with our Indigenous partners, the Government of Canada used PMB C-262 as the floor for a new legislative proposal. Like PMB C-262, the new legislation includes a preamble, measures that would require the Government of Canada, in consultation and cooperation with Indigenous peoples, to align federal laws and the Declaration and develop an action plan, and report to Parliament on progress.

Areas where this Bill differs from PMB C-262 include the addition of:

These changes and additions enhance and build upon the elements set out in PMB C-262.

Q. The BC Declaration on the Rights of Indigenous Peoples Act includes provisions relating to decision-making agreements between the Government of BC and Indigenous Governing Bodies. Similar provisions were not included in C-15. Why not?

A. We recognize the importance of sections 6 and 7 in the BC Declaration, which create space to enter into agreements with a broader range of Indigenous governments. We understand these provisions are intended to allow for increased flexibility for the province to enter into agreements with a broader range of Indigenous governments, including joint or consent-based decision-making agreements.

In the federal context, similar agreement-related provisions already exist in various policies and statutes. Such provisions permit Ministers/the government to negotiate and enter into a variety of agreements and arrangements with Indigenous peoples for particular purposes.

For instance, under the Impact Assessment Act, the responsible Minister has the authority to enter into arrangements or agreements with Indigenous governing bodies (as defined under the Act) for a range of specified purposes related to impact assessment. Further, the Act provides the responsible Minister, at his or her discretion, the ability to substitute an Indigenous governing body process for the Agency‘s process.

Similarly, the Agency may delegate a part of impact assessment to an Indigenous governing body. Specific agreement-making provisions also exist in other federal legislation such as, the Indigenous Languages Act and An Act Respecting First Nations, Inuit and Métis Children, Youth and Families.

In the context of Bill C-15, the inclusion of similar provisions to those in section 6 and 7 in the BC Declaration Act could pose uncertainty with respect to how the provisions would interact with existing legislative schemes. With that in mind, we remain committed to exploring new, creative ways of working together over time as we develop our action plan and work to ensure federal laws are consistent with the UN Declaration.

Q. Why does the preamble refer to the “Métis Nation” along with First Nations and Inuit as having “… throughout history and to this day, lived in the lands that are now in Canada with their distinct identities, cultures and ways of life”?

A. Over the course of our engagement, we learned from Indigenous peoples across the country that Bill C-262 did not adequately reflect the distinct experiences and realities of First Nations, Inuit and Métis peoples. We therefore needed to find a way to address this concern.

Based on the many proposals we received, and drawing on similar language found in other recent legislation (notably Bills C-91 and C-92), we included a preambular paragraph that recognizes in a positive way the long and distinct histories, identities, cultures and ways of life of First Nations, Inuit and Métis peoples.

Q. What kinds of accountability or recourse mechanisms does the legislation include?

A. In addition to the provisions to align laws with the Declaration, and prepare and implement an action plan, Bill C-15 would require an annual report to be tabled in parliament. The annual report will contribute to accountability for making progress on implementing the Declaration.

Bill C- 15 would require the Government to work with Indigenous peoples to develop an action plan for the ongoing implementation of the Declaration. The action plan would be a vital part of implementing the legislation once it comes into force. This would also provide an opportunity to work together with Indigenous partners on developing specific and concrete measures that would contribute to the implementation of the Declaration, including potential recourse mechanisms.

Q. Why is there no provision relating to the coming into force of the bill?

A. No specific coming into force provision is required if the statute is intended to come into force upon Royal Assent. Section 5 of the Interpretation Act already provides for the coming into force of statutes and specific provisions are only required in order to vary those general provisions.

Q. Would Bill C-15 or implementing the Declaration help with the COVID-19 recovery?

A. The COVID-19 pandemic has exacerbated the ongoing health, food security, housing, economic, governance, policing and other vulnerabilities that continue to impact Indigenous communities. Post-COVID economic recovery needs to include Indigenous peoples as full partners in economic recovery and growth.

Bill C-15 could help structure and guide dialogue around combatting the inequality and discrimination against Indigenous peoples that lies at the root of many of these vulnerabilities, as well as around supporting self-determination and the re-building of Indigenous nations and communities and their sustainable development over the longer term.

Q. Would Bill C-15 or implementing the Declaration help address racism?

A. Yes, implementing Bill C-15 can play a significant role in combating racism and discrimination – precisely because it focuses us on taking action and doing the hard work together needed to address these issues on the ground. The Bill recognizes the importance of combatting racism and systemic racism in the preamble of the Bill in the context of recognizing the need to take concrete measures to address injustices and discrimination faced by Indigenous peoples.

This addition underscores the role that a human rights-based approach, reflecting the rights, standards and principles of the Declaration, can contribute to improving socio-economic and other conditions and creating a more inclusive Canada.

Once passed, the legislation would require the Government of Canada to work in consultation and cooperation with Indigenous peoples, to identify what additional measures may be needed to address injustices, combat prejudice and eliminate all forms of violence and discrimination against Indigenous peoples, including elders, youth, children, persons with disabilities, women, men and gender-diverse, and two-spirit persons.

It would also require the plan to include measures to promote mutual respect and understanding as well as good relations, including through human rights education.

While this important national work is taking place, Canada will continue its ongoing discussions with Indigenous peoples to make progress together on our shared priorities for advancing reconciliation, improving community well-being and renewing the nation-to-nation, Inuit-Crown, government-to-government relationship.

Q. Why was the language for the non-derogation clause, now clause 2(2) in Bill C-15 changed from former Bill-262?

A. The non-derogation clause has been adjusted to reflect recent legislative practice and to align with the recommendations made in 2007 by the Senate Committee. Clause 2(2) requires Bill C-15 to be interpreted in a way that upholds section 35 rights. It does not – indeed cannot – be used to diminish Aboriginal or treaty rights protected by section 35 of the Constitution. Further, this clause does not speak to the interpretation of the rights in the Declaration itself, which is governed by international law principles.

Q. Will the Government accept the AFN’s proposed amendments in relation to clause 2 and include revised non-derogation language and a statement that Aboriginal and treaty rights are not frozen in time?

A. Clause 2(2) already reflects the language and concepts in the AFN proposal, using terms that are consistent with other legislative examples in Canada. Linguistically, “diminish” which the AFN proposes to add, is a synonym for derogate. Since derogate is already used in other federal legislation, it is important to maintain consistency so that similar provisions are understood in similar ways. The existing provision is also consistent with the language recommended by the Senate Committee in 2007.

The preamble to the Bill was amended by INAN to include an acknowledgment that Aboriginal and treaty rights protected by section 35 of the Constitution Act, 1982 are not “frozen and are capable of evolution and growth”. This statement adds clarity to the recognition that the protection of Aboriginal and treaty rights — recognized and affirmed by section 35 of the Constitution Act, 1982 — is an underlying principle and value of the Constitution of Canada. It also reflects statements that have been made by Canadian Courts underscoring that Aboriginal rights “find their source in an earlier age, but they have not been frozen in time. They are, as has been said, rights not relics.” (Mitchell at para 132).

Q. Does the Bill repudiate the doctrine of discovery and/or terra nullius?

A. Canada’s position is that these ancient doctrines have no place in modern Canadian law. To this end, recent amendments to the Bill by INAN during Committee stage now ensure that Bill C-15 includes an explicit reference to these doctrines.

This builds on the rejection of all doctrines based on discriminatory and racist ideas of superiority and the rejection of colonialism in favor of relationships based on the principles of justice, democracy, equality, non-discrimination, good governance and respect for human rights.

The inclusion of an explicit reference to the doctrines of discovery and terra nullius as amongst the types of doctrines that have historically been used in association with ideas of racial superiority underscores that these doctrines have no place in informing our ongoing relationship with Indigenous peoples.

The Supreme Court of Canada has clearly indicated that terra nullius never applied in Canada (see Tsilhqot’in, 2014 SCC 44 at para. 69). The preamble to Bill C-15 includes language from the Declaration speaking to “all doctrines, policies and practices” based on racist or discriminatory notions noting that such doctrines are racist, scientifically false, legally invalid, morally condemnable and socially unjust. The Government of Canada is also working with Indigenous partners in responding to CTA 46 by developing a Covenant of Reconciliation that specifically addresses the doctrine of discovery.

Impact on existing legislation and the Constitution

Q. How many/which federal laws could be impacted by the legislation?

A. Given the scope of the subject areas in the Declaration, many federal laws intersect with elements of the Declaration, including the Indian Act. We anticipate that some existing federal laws will need to be amended in order to better align with the Declaration. This legislation provides a whole-of-government framework for identifying and guiding such future changes. New legislation will also need to be developed with the Declaration in mind.

The full and effective implementation of the Declaration is a process that will take time as the federal government, in cooperation and partnership with Indigenous peoples, assesses changes that need to be made to laws, policies and practices to be consistent with the Declaration. Any future changes to federal law would be undertaken in cooperation with Indigenous peoples and go through regular policy development, engagement and parliamentary processes.

Q. Would the legislation amend the Constitution?

A. No. The legislation does not amend the Constitution – but does recognize that the Declaration should inform how we understand and interpret the Constitution. The Declaration affirms the human rights of Indigenous peoples – both collective and individual rights. These include the inherent right to self-determination and the right of self-government, as well as equality rights, rights relating to culture, spirituality, and identity, and rights relating to lands, territories and resources.

Many of the rights it affirms are already reflected in the Constitution, notably the Charter of Rights and Freedoms and section 35 of the Constitution, which recognizes and affirms Aboriginal and treaty rights. That said, both this legislation and Canadian law recognize that international instruments like the Declaration can be used to interpret the Constitution, which is a “living tree” that evolves over time.

Impact on provinces and territories and other jurisdictions

Q. How would the proposed legislation impact provinces and territories? British Columbia already has a Declaration law – how would this interact with their law?

A. The proposed federal legislation on the Declaration will only impose obligations on the federal government. This is a federal bill aimed at aligning federal laws with the Declaration.

The Government of Canada held discussions with provinces and territories and affirmed this position. We are willing to continue bilateral conversations with provinces and territories to clarify the bill’s scope.

However, some provincial and territorial governments in Canada are also using the Declaration as a framework for reconciliation and to actively engage with Indigenous peoples on matters that affect them. Nothing in the federal legislation would prevent provinces or territories from developing their own plans and approaches for implementation of the Declaration.

Provincial, territorial and municipal governments each have the ability to establish their own approaches to contributing to the implementation of the Declaration by taking various measures that fall within their areas of authority. The Government of Canada welcomes opportunities to work cooperatively with those governments, Indigenous peoples and other sectors of society towards achieving the objectives of the Declaration.

Q. How does the Government of Canada define Laws of Canada?

A. As used in Bill C-15 the Government of Canada defines the Laws of Canada as federal legislation passed by the Parliament of Canada.

Q. If passed, would the proposed legislation mean that other levels of Government don’t need to take action on the Declaration?

A. This legislation is focused on federal action to implement the Declaration. Indigenous rights are human rights and any action that can be taken to affirm, protect and uphold human rights should be encouraged. Implementing the Declaration and recognizing the objectives is the right thing to do.

The Calls to Action by the Truth and Reconciliation Commission of Canada specifically highlights actions to support the Declaration that can and should be taken by all levels of government. This journey of reconciliation, building stronger relationships with Indigenous peoples, and building a better Canada is one that we can all do our part. Local, regional, provincial, and organizations alike are encouraged to take action.

Impact on economy

Q. Would adopting the Declaration as a framework for reconciliation have an impact on the Canadian economy?

A. Yes, in a positive way. Recognizing and respecting Indigenous rights means that Indigenous peoples are at the table for decisions that impact their rights. In many cases, it means that economic development and stronger economic outcomes will be advanced with Indigenous peoples as partners.

As we work to we will help develop a stronger, more sustainable, and predictable path for everyone to work together as partners, with a shared stake in Canada’s future.

We must recognize that participation in economic development is a reflection of self-determination that holds tremendous opportunity to improve the well-being of Indigenous communities. Over time, this participation will help create stronger and healthier communities, and contribute to jobs and economic growth.

Free, prior and informed consent

Q. What is free, prior and informed consent?

A. References to “free, prior and informed consent” are found throughout the Declaration. They emphasize the importance of recognizing and upholding the rights of Indigenous peoples and ensuring that there is effective and meaningful participation of Indigenous peoples in decisions that affect them, their communities and territories.

Free, prior and informed consent is about working together in partnership and respect. In many ways, it reflects the ideals behind the relationship with Indigenous peoples, by striving to achieve consensus as parties work together in good faith on decisions that impact Indigenous rights and interests. Despite what some have suggested, it is not about having a veto over government decision-making.

It is important to understand free, prior and informed consent in context: different initiatives will have different impacts on Indigenous peoples’ rights. Free prior and informed consent may require different processes or new creative ways of working together to ensure meaningful and effective participation in decision-making.

Q. There are a range of views about the provisions relating to FPIC. How do current requirements around “duty to consult” differ from FPIC?

A. As the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples note, FPIC builds on and goes beyond the legal duty to consult. While there are similarities and overlaps between the duty to consult and FPIC, they are not the same thing and they will arise in different ways in different contexts. The duty to consult and accommodate is a specific constitutional obligation that arises where certain conditions are met. Consultation obligations can also be set out in legislation or modern treaties. It is important to emphasize that existing constitutional and legal obligations will continue.

”Consultation and cooperation” as set out in a number of articles of the Declaration refers more generally to a process of meaningful partnership and dialogue appropriate to the context in question. It is relevant both in circumstances where the duty to consult and accommodate are triggered and in broader circumstances – like the development of legislative measures – where the duty to consult would not impose specific legal obligations.

FPIC focuses on the inclusion of voices, concerns, and opinions of all Indigenous peoples that would be affected by a proposed initiative, activity or project, and ensuring that these concerns are addressed and that there are mitigation plans in place.

In terms of the duty to consult, if passed, this legislation would not change Canada’s existing duty to consult Indigenous peoples, or other consultation and participation requirements set out in other legislation like the new Impact Assessment Act. 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 partners and all Canadians. The Government of Canada has a constitutional duty to consult and accommodate Indigenous partners when it considers measures that might adversely impact potential or established Aboriginal or treaty rights. This has been consistently confirmed by the Courts. The Government has consistently worked to uphold this duty and has shown its commitment to taking additional steps to do so.

Q. What happens if there is a disagreement, consensus is not reached or consent is withheld? Does free, prior and informed consent mean a veto?

A. In the event consent is withheld, the facts and law applicable to the specific circumstances will determine the path forward. Decision-making on the part of the Government of Canada would need to proceed on the basis of the relevant legal framework, including any negotiated or other arrangements. FPIC does not remove or replace government decision-making authority, but it does inform how that authority should be exercised.

Both section 35 of Canada’s Constitution and the Declaration recognize that there are certain circumstances where the Government may be justified in proceeding with a decision that impacts Indigenous rights, provided meaningful engagement has occurred and efforts have been made to minimize those impacts. In many cases, government decisions are judicially reviewable, meaning Indigenous partners can ask a court to review the decision if they have concerns about the decision or how it was taken.

Legislation that supports the implementation of the Declaration would continue to encourage us to find new, creative ways of working together and integrating diverse perspectives into decision-making that help build deeper collaboration and consensus, while also continuing to respect the Canadian Constitution, notably section 35.

Q. How would this impact natural resource projects? Would it affect existing projects or future projects?

A. If Bill C-15 is passed and receives Royal Assent, it would not change existing laws, including statutory provisions related to Indigenous consultation, or procedural requirements set out in legislation like the Impact Assessment Act.

Government and proponents will continue to be required to meet all existing legal obligations and requirements.

With regard to natural resource projects, the Declaration would not create any new or specific legal obligations. However, the Declaration would underscore that securing consent for a project may require different processes or new creative ways of working together to ensure meaningful and effective participation in decision-making.

Q. Would the federal government maintain the final authority for making decisions on infrastructure and resource projects once this legislation is enacted into law?

A. Decision-making with respect to infrastructure or resource projects will continue to be governed by the relevant legal and policy regimes. The proposed legislation and any implementation measures identified as part of the development of the action plan would apply only to federal areas of jurisdiction. The Government will continue to support and advance processes of resolution over lands to reconcile the relationships with Indigenous peoples based on the recognition of rights, respect, cooperation and partnership.

We recognize that the majority of natural resource development projects occur on provincial Crown and private lands, and that there are multiple jurisdictions and shared responsibilities. This is why the federal government will continue to engage with provinces and territories as the proposed legislation advances, and will encourage ways to work collaboratively to implement the Declaration in Canada.

The Declaration would not create any new or specific legal obligations with respect to decision-making. Rather, it would underscore that securing consent for a project may require different processes or new creative ways of working together to ensure meaningful and effective participation in decision-making.

Q. Does the importance of securing free, prior and informed consent increase on Aboriginal title lands?

A. Yes. The Supreme Court of Canada has indicated that the standard for securing consent of Indigenous peoples is strongest on Aboriginal title lands.

Aboriginal title, as affirmed by the Supreme Court of Canada, provides the right to use, control, and manage the land and the right to the economic benefits of the land and its resources. This right is recognized and affirmed by section 35 of the Constitution Act, 1982.

It is up to the Indigenous peoples who have Aboriginal title to decide how to use and manage their lands. However, this is subject to the limit that the land cannot be developed in a way that would deprive future generations of the benefit of the land. Like other section 35 rights, title rights are not absolute and can be infringed upon if the high threshold of justification, which includes Indigenous perspectives and satisfies the Crown’s fiduciary obligations, is met.

Q. According to the Declaration, free, prior and informed consent extends beyond lands and resources (e.g. Article 19 on legislative or administrative measures). How will consent work in those situations?

A. The Government of Canada will look for opportunities to build processes and approaches aimed at securing consent, as well as creative and innovative mechanisms that will help build deeper collaboration, consensus, and new ways of working together. It will ensure that Indigenous peoples and their governments have a role in public decision making consistent with Canada’s constitutional framework and that Indigenous rights, and interests, are recognized and taken into account in decision-making that affects them.

Q. Industry has asked that federal legislation clarify or include a definition of free, prior and informed consent. Will you do that?

A. Like other human rights protections set out in international human rights instruments and the Constitution, free, prior and informed consent is a fundamental safeguard that must be understood in context. This makes it challenging to define in legislation. That said, the debate and discussion of this proposed legislation, as well as the processes to be established by it, will allow for discussions on a variety of elements in the Declaration, including the concept of free, prior and informed consent. This will help to build greater shared understanding of the Declaration and how it can best be implemented in Canada. The development of an action plan would be a venue to advance discussions on this point.

Q. Do you agree with how AFN/Mary Ellen Turpel-Lafond characterized FPIC? Why won’t you define it?

A. Like Ms. Turpel-Lafond noted, we have been clear that FPIC is not a veto on government decision-making – that is not how it is operationalized. Governments have authority to make decisions taking into account various rights and interests. FPIC does not remove or invalidate any of these authorities or powers.

At its core, FPIC is about ensuring meaningful and effective participation from the outset of a project or proposal. It means that Indigenous rights inform decision-making processes and that government decisions are exercised in ways that recognize and respect the rights of Indigenous peoples. As part of building cooperative relationships moving forward, FPIC can help promote stability and predictability.

In terms of including a definition in the bill: FPIC is not used in the Bill itself – so it would be very unusual to introduce a legislative definition for a term that is not itself used in the bill. Further, the operationalization of FPIC depends in large part on the specific facts and contexts in which it arises. This means taking into account the rights and interests that stand to be affected by particular proposals, the degree of potential impact on those rights and interests, and any relevant agreements, arrangements or legal frameworks applicable in the circumstances.

This makes it very challenging to craft a definition that is both legally accurate and practically useful.

For these reasons, developing context-specific approaches to the application of FPIC would be more effectively undertaken as part of the implementation of the legislation. The development and subsequent implementation of the action plan, and measures to align federal laws with the Declaration, provide the collaborative framework and opportunity to effectively discuss and develop approaches to implement FPIC moving forward.

Advancing reconciliation

Q. How will adopting the Declaration as a framework to advance reconciliation improve the Government’s relationships with Indigenous peoples?

A. The Declaration provides human rights-based principles, norms and standards for reconciliation to flourish in 21st century Canada and beyond. There will be many benefits as we work together to identify new measures to reflect the rights and objectives in the Declaration. Through this process, we will:

Many Indigenous leaders, peoples and partners supported former Private Member’s Bill C-262 with enhancements and voiced support on moving forward with the federal government’s plan to implement the Declaration. Bill C-15 demonstrates a true commitment to advance reconciliation and improve relationships with Indigenous peoples.

Q. Assuming Bill C-15 receives royal assent this spring, what are your short-term goals for Indigenous reconciliation? Are there any particular UNDRIP-related issues that the government would like to address on a “priority basis” with Indigenous Peoples?

A. Priorities and short-term goals to support reconciliation will need to be identified in collaboration and cooperation with Indigenous peoples. The development of an action plan will be a key piece of this.

As we take on this new work, the Government will continue its efforts on other priorities that support reconciliation and which intersect with the implementation of the Declaration. This includes:

Revised in April 26
Aboriginal Law Centre/Aboriginal Affairs Portfolio