Written by Radha D. Curpen, David Bursey, Sharon G.K. Singh and Amy O'Connor
On February 12, 2019, the British Columbia government announced plans to introduce legislation that implements the United Nations Declaration on the Rights of Indigenous People (UNDRIP) (the Legislation), as part of the provincial government's reconciliation objective.
UNDRIP consists of 46 articles that offer guidance to governments on recognizing and promoting basic human rights of Indigenous peoples around the world, as well as their right to self-determination. The most contentious principles relate to obtaining the free, prior and informed consent (FPIC) of Indigenous communities before undertaking certain actions, including prior to approving any project affecting their lands or resources. If the Legislation is passed, then B.C. will be the first province in Canada to endorse UNDRIP through legislation.
This update summarizes the status of UNDRIP in Canada and discusses potential implications of the Legislation.
Status of UNDRIP in Canada
UNDRIP was initially adopted by the General Assembly of the United Nations in September 2007. In November 2010, Canada issued a Statement of Support endorsing UNDRIP, and more recently in May 2016, the Minister of Indigenous and Northern Affairs announced that Canada supports UNDRIP, without qualification. In addition, a private member's bill is currently before the Senate that aims to harmonize Canadian laws with UNDRIP (Bill 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) (the Bill).
UNDRIP received a renewed focus at the provincial level in 2017, with the swearing in of the NDP (supported by the B.C. Green Party) and its commitment to "make reconciliation a cross-government priority." The Legislation has a similar aim to the Bill; namely, to mandate the government to bring laws and policies into harmony with UNDRIP. The scope of the Legislation is currently unclear, however, since the enabling bill is in the drafting stages and the government has provided few additional details.
To learn how the Bill might adopt and implement UNDRIP, we may look for guidance to Bill 51– the Environmental Assessment Act, passed in November 2018. The environmental assessment process is the arena in which the concept of FPIC arises most often. Bill 51 aims to “revitalize” the provincial environmental assessment process and "to ensure the legal rights of First Nations are respected, and the public's expectation of a strong transparent process is met."
Under Bill 51, the Environmental Assessment Office’s objectives are to support the implementation of UNDRIP and collaborate with Indigenous nations on the review of projects, consistent with UNDRIP. Bill 51 establishes greater involvement of Indigenous nations in all stages of the assessment process—from process planning to decision—and includes the requirement to seek consensus from participating Indigenous nations on several key decisions in the assessment process.
The Legislation continues the provincial government’s incremental approach to UNDRIP. With few details available, there will be inevitable uncertainty regarding the Legislation’s content and scope. The Legislation will need to manage differing expectations and address overlapping claims and various governance models, amongst other issues. We will continue to monitor the progress of the Legislation.
If you have any questions regarding the potential implications of the proposed legislation, please speak to a member of the Regulatory Law team at Bennett Jones.