BC Introduces Novel Legislation to Implement the United Nations Declaration on the Rights of Indigenous Peoples

On October 24, 2019, the Government of British Columbia introduced Bill 41, which contains legislation that, if passed, will affirm the application of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) to all of British Columbia’s laws.

What is UNDRIP?

UNDRIP is an international instrument codifying how States should promote and protect Indigenous rights and the rights of Indigenous peoples. Among other principles, UNDRIP requires states to:

  • obtain Indigenous peoples’ “free, prior and informed consent before adopting and implementing legislative and administrative measures that may affect them”; and,
  • provide redress, which may include restitution, for the cultural, spiritual, intellectual, and religious property, and for the lands, territories, and resources confiscated, taken, occupied, or used without free, prior, and informed consent.

While UNDRIP was adopted by the United Nations General Assembly in 2007, its legal status in Canada remains contested and uncertain. Although UNDRIP arguably has legal force in Canada today as an international law instrument, to be fully implemented in Canada, UNDRIP would have to be incorporated into domestic legislation. To date, however, no federal or provincial government has passed such legislation (a federal bill to implement UNDRIP died in the Senate prior to the recent federal election). If British Columbia passes Bill 41, it will be the first jurisdiction in Canada to officially implement UNDRIP into law.

What will Bill 41 require the BC Government to do?

On a general level, Bill 41 requires the provincial government to take steps to implement UNDRIP in BC. The Bill is focused on the process of implementation, rather than the substantive requirements or changes in the law that will be required through implementation.

Among other components, Bill 41 requires:

  • the provincial government to act without delay to create an action plan to implement the objectives of UNDRIP.
  •  the provincial government to “take all measures necessary” to ensure that British Columbia’s laws are consistent with UNDRIP; and,
  • the Minister to prepare an annual report that details the progress made towards implementing the action plan and the measures taken to ensure provincial laws comply with UNDRIP.

The creation and implementation of the action plan, the report, and the measures to ensure provincial laws comply with UNDRIP must be done in consultation and cooperation with the Indigenous peoples in British Columbia.

Bill-41 also provides a potential new framework for cooperative decision-making. It provides the provincial government with the option to enter into a decision-making agreement with an Indigenous governing body in relation to the exercise of a statutory power of decision. The agreements may allow for joint decision making or may require the consent of an Indigenous governing body before a decision is made, or both. While the action plan, report, and measures to ensure provincial laws comply with UNDRIP are mandatory, the negotiation and implementation of a decision making agreement is optional and requires authorization from the Lieutenant Governor in Council.

Challenges and Opportunities in the Provincial Implementation of UNDRIP

While Bill 41 provides a promising first step in the provincial implementation of UNDRIP, significant questions remain about how implementation will look and operate in practice. The potential implications are significant, and will likely inform the provincial government’s approach to treaty negotiations, interpretation of s. 35 rights, and consultation in regard to development and resource projects. Further, the implementation may result in broad changes to policy and amendments to existing provincial laws. The scope and nature of those changes, however, remains to be seen.

Implementation of UNDRIP in BC is likely to raise many questions both provincially and nationally about both what UNDRIP requires and how, if at all, UNDRIP can be aligned with Canada’s current approach to Aboriginal rights as analyzed through s. 35 of the Constitution. While some scholars have argued that UNDRIP and s. 35 are in tension, others suggest that UNDRIP is consistent with a more expansive interpretation of s. 35 – put otherwise, UNDRIP would serve to enhance Canada’s existing legal framework. As the first Canadian government to implement UNDRIP, BC may become the front line for UNDRIP interpretation in Canada, where these issues are raised in practice for the first time.

There is both challenge and opportunity for Indigenous Nations and organizations to work with BC to ensure that the robust protections of UNDRIP are integrated into – rather than diminished by – a Canadian legal framework, especially as Bill 41 requires the government to engage in consultation and collaboration with Indigenous groups at every step of implementation. As Bill 41 also provides a framework for shared decision making, Indigenous groups may also wish to creative approaches to negotiating decision-making power for their territories and other important issues under the bill.