It has been over a year since the federal government announced at the UN Permanent Forum on Indigenous Issues that Canada was now a full and unqualified supporter of UNDRIP and that the federal government would be implementing UNDRIP in Canada (details here ). Following that announcement, Canada indicated that it would be carrying out consultations on the implementation of UNDRIP with Aboriginal groups and other stakeholders over the course of several months.
Consultation and other related work remain underway a year later but there have been numerous developments over the past twelve months that will likely inform how Canada implements UNDRIP, including its approach to interpreting the principle of "free, prior and informed consent" (FPIC) articulated in UNDRIP. These developments continue to point to an approach that would see consent as the objective of Aboriginal consultation and not an absolute requirement. Below is our round-up of notable federal UNDRIP initiatives that have taken place over the course of the past year, including the latest Principles released in July, as well as an update with respect to British Columbia’s new NDP government. Initial Statements Regarding UNDRIP
In announcing Canada’s unqualified support for UNDRIP in May 2016, Indigenous and Northern Affairs Canada Minister Carolyn Bennett stated that the federal government intended to "implement the declaration in accordance with the Canadian Constitution" and that this implementation would be "breathing life into s. 35" which the Government of Canada was now recognizing as the "full box of rights for Indigenous peoples of Canada". These statements were strong initial signals that the Government of Canada intended to interpret the provisions in UNDRIP requiring the "free, prior, and informed consent" of Aboriginal peoples as an objective and not an absolute requirement or veto given that this would be inconsistent with the Canadian Constitution and the jurisprudence on section 35. Indeed, the Supreme Court of Canada once again reaffirmed last month in Chippewas of the Thames that "balance and compromise" are inherent in the reconciliation process mandated by section 35 and that the duty to consult "does not provide Indigenous groups with a ‘veto’ over final Crown decisions" (paras. 59-60).
In addition to this initial statement, Justice Minister Jody Wilson-Raybould also commented publicly a couple of months later in July 2016 about the unworkability of direct implementation of UNDRIP into law, as certain of its provisions are at odds with Canada’s existing legal framework. Rather, she said that the government would consult on implementation on each of the Articles of the Declaration, and that UNDRIP would be implemented over time through legislation, policy and action. In September 2016, Minister Wilson-Raybould also publicly stated that UNDRIP could not be incorporated "word for word" into law, and that implementation of UNDRIP must consider the constitutional and legal contexts of Canada. Federal Consultation and Implementation Initiatives
1. Review of Environmental and Regulatory Processes Legislation, Expert Panel Report and Discussion Paper
In June 2016, the federal government launched a comprehensive review of four key environmental and regulatory processes: the Canadian Environmental Assessment Act, 2012 ( CEAA 2012 ), the National Energy Board Act (NEBA ), the Fisheries Act and the Navigation Protection Act . The federal government indicated that "[c]onsultation will be at the core of this review." Expert Panel Report
In August 2016, the Minister of Environment and Climate Change established an independent Expert Panel to develop recommendations on potential changes to CEAA 2012 . One of the key goals set out in the Panel’s terms of reference was to find ways to enhance Indigenous participation and consultation, and to reflect the principles of UNDRIP. The Expert Panel Report, […]
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