UN Declaration Action Plan and Treaties

In this blog, we provide an overview of the United Nations Action Plan’s (“UNDA”) distinction-based approach regarding historic and modern treaties. Canada has said that historic and modern treaties inform Canada’s relationships and approaches with respect to the implementation of the Action Plan.^[1]United Nations Action Plan, at page 23 But many are left questioning how historic and modern treaties will help form its relationships and approaches regarding the implementation of the Action Plan.

Highlights About Treaties in The Action Plan

Here are some highlights about treaties in the Action Plan:

• 18 measures related to treaties (in total)
• An entire chapter related to Modern Treaty Priorities
• Two measures related to historic treaties, but only one measure on historic treaties specifically
• Engages Articles 3, 4, and 37 of the United Nations Declaration on the Rights of Indigenous Peoples regarding the recognition, observance, and enforcement of treaties^[2]United Nations Declaration on the Rights of Indigenous Peoples

Measures Commit Canada to Honourably Implement Modern And Historic Treaties

Measure 25 requires Canada to implement both historic and modern treaties. Measure 25 states:

Consistent with article 37 of the UN Declaration, honourably implement historic and modern treaties, self-government arrangements, agreements and constructive arrangements – see specific measures found in subsequent chapters. (All departments)^[3]Measure 25 in Chapter 1 on Shared Priorities of First Nation, Metis, and Inuit peoples.

This measure broadly codifies the existing state of the law on treaty rights in Canada. Canada is already required to implement historic and modern treaties honourably and diligently in Canada. For example, in a case appealed to the Supreme Court of Canada, Restoule v Canada, the Ontario Court of Appeal confirmed that the honour of the Crown demands a purposive interpretation of treaties.^[4]Restoule v. Canada (Attorney General), 2021 ONCA 779, at 240 and 249 [Restoule]; originally citing: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, at para 76 [MMF]. Further that the Crown must act diligently in its pursuit of its solemn obligations and honourable reconciliation of Crown and Aboriginal interests.^[5]Restoule, at para 240; originally citing MMF, at para 78. Measure 25 does not change the legal landscape, nor articulate how Canada will implement this measure in accordance with Article 37 of the UN Declaration.

Action Plan Falls Short for First Nations With Historic Treaties

Measure 2 is the only measure specific to historic treaties in the Action Plan. Measure 2 states:

Re-affirm pre-1975 treaty relationships based on the principles of mutual respect, self-determination and the nation-to-nation relationship. Engage Treaty Nations in co-developing approaches, including reconvening of Treaty Councils if Nations wish to do so, for the renewal and honourable implementation of pre-1975 treaties and treaty relationships, including a shared vision to guide actions and a common understanding of the spirit and intent of pre-1975 treaties. (Crown-Indigenous Relations and Northern Affairs Canada)^[6]Chapter 2 in First Nation Priorities.

Measure 2 commits Crown-Indigenous Relations and Northern Affairs Canada to “engage Treaty Nations in co-developing approaches” to the implementation of historic treaties. The commitment to co-develop approaches creates a wedge for First Nations with Historic Treaties to negotiate bilateral mechanisms. Bilateral mechanisms could serve as a forum for First Nations and Canada to come together to reach a shared understanding of the Crown’s treaty obligations and how the Crown ought to fulfill those obligations.

Modern Treaty Partner Priorities

Modern Treaty Partners are a “distinct element within the distinctions-based approach that includes First Nations, Inuit, and Métis peoples”.^[7]Modern Treaty Partners are Indigenous peoples who entered into Modern Treaties, at p 67.Chapter 5 sets out an instructive blueprint on measures to co-develop legislative and policy processes, tools, and mechanisms regarding the implementation of modern treaties.^[8] Ibid, at p 59. There are 16 measures with several sub-measures including:

• A robust framework for the continuation of the co-development annexes to Canada’s Collaborative Modern Treaty Implementation Policy (Measure 1)^[9]Canada’s Collaborative Modern Treaty Implementation Policy (rcaanc-cirnac.gc.ca)
• Co-development of funding methodologies to ensure Modern Treaty Partners have the fiscal resources to meet their governing responsibilities (Measure 8)
• A Modern Treaty oversight mechanism (Measure 9)
• Collaboration on possible changes to federal legislation, regulation, and policies to ensure consistency between modern treaty obligations and federal laws (e.g., Measures 9, 13, and 14)

The co-development of the suite of legislative, policy, and other mechanisms through the implementation of the Action Plan is vitally important as more Nations negotiate self-government agreements. To date there are 25 self-government agreements signed between First Nations, Canada, and the provinces with many more being negotiated. As more self-government agreements are signed, it will become imperative that First Nations be able to fully implement their rights with respect to self-government. The depth of the co-development including measures to determine the actual implementation of those modern treaty rights will be equally determinative. While this is important, it amounts to a continuation for Canada to continue to work cooperatively with First Nations and does not create concrete commitments for Canada.

Conclusion

The Action Plan’s distinction between historic and modern treaty rights and rights-holders has left some First Nations questioning Canada’s willingness to meet their obligations to implement treaties and accommodate treaty rights in legislation. First Nations have entered solemn treaties and they are largely uninterested in any tables set to renegotiate their treaties as “modern” treaties. Therefore, historic treaty parties do not have similar access to the many commitments on treaty implementation provided to Modern Treaty Partners.

We leave you with this question to consider – will historic treaties become engulfed by Canada’s modern treaty framework? In the coming weeks and months as conversations regarding implementation progress, the issue may become more clearly defined. But at this time, we are left with more questions than answers regarding the Action Plan’s measures on modern and historic treaties.

This is the third JFK Law LLP blog as part of our UNDA Action Plan blog series. Please stay tuned to the JFK Law blog to learn more about what is in the Action Plan.