Introduction
On December 3, 2020, the government of Canada (Canada) tabled Bill C-15, the United Nations Declaration on the Rights of Indigenous Peoples Act (Bill C-15).[1] If passed, the bill would affirm the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as an international human rights instrument with application in Canadian law and provide a framework for Canada’s implementation of UNDRIP. Bill C-15 could have significant legal implications for the existing common law Indigenous rights regime and represents a marked development in Aboriginal law. Over a series of blog posts, JFK Law will dive into Bill C-15 and discuss what it is and is not, and look at the potential challenges and opportunities the bill presents. This first post considers Bill C-15 in its historical and legal context.
Bill C-15 has the potential to be transformative; but because the hard work of implementing UNDRIP lays ahead, this will be determined by Canada’s future policy and conduct as it implements UNDRIP. Similarly, time will tell how the Act and its commendable objectives will factor into Canada’s existing common law Indigenous rights regime. However, uncertainty should neither delay the application of UNDRIP in Canadian law, as Bill C-15 expressly states, nor delay this important discussion.
Since it was adopted in 2007, UNDRIP’s effect on the Indigenous rights regime in Canada has been unclear and Bill C-15 raises similar questions. For example, the Supreme Court of Canada (SCC) has repeatedly held that international instruments have no binding legal effect in domestic law until clearly implemented through Canada’s own legislation.[2] As we discuss further below, Bill C-15 does not clearly do this. This bill in conjunction with the SCC’s recent difficulty in grappling with Indigenous rights and the duty to consult, particularly in relation to legislative development,[3] demonstrates that the law is not just unsettled – it is primed for further development and demands discussion.
Background
Bill C-15, if passed, would be the second piece of domestic Canadian legislation that requires its enacting government to take steps to implement UNDRIP.
In October 2019, British Columbia passed the Declaration on the Rights of Indigenous Peoples Act (DRIPA)[4] upon first reading (see our commentary: here). Bill C-15 proposes a framework that is similar to that contained in the DRIPA, which is unsurprising as DRIPA was drafted to align with previously proposed federal legislation. In fact, Bill C-15 represents the federal government’s third attempt to affirm and implement UNDRIP in Canada.
Member of Parliament (MP) Romeo Saganash twice submitted private member bills that sought to ensure that the laws of Canada be in harmony and consistent with with UNDRIP. As with Bill C-15, this would be done in consultation and cooperation with Canada’s Indigenous peoples.
MP Saganash’s first UNDRIP bill (Bill C-641) was introduced in December 2014, and was defeated on second reading in May 2015. He introduced a second bill in 2016 (Bill C-262) shortly after the Liberal party came into power. This time, Bill C-262 sought to have UNDRIP “affirmed as a universal international human rights instrument with application in Canadian law” and further proposed a national action plan with concomitant reporting obligations imposed upon Canada. Bill C-262 died on the order paper after failing to pass in the Senate.
After Bill C-262 was unsuccessful, the federal Liberal party committed in its 2019 election campaign to tabling legislation to implement UNDRIP.
This brings us to the present.
Summary of Bill C-15
Bill C-15 would affirm UNDRIP’s application to Canadian law, to ensure that the laws of Canada are consistent with UNDRIP, and provide a framework for Canada’s implementation of UNDRIP. The principles set out in the bill are a benchmark for Canada’s conduct going forward. But Bill C-15 does not go so far as to prescribe requirements for Canada’s conduct when consulting and cooperating with Indigenous peoples about implementing UNDRIP. Rather, the federal government will likely further develop processes and policies under future legislative frameworks. This is discussed in further detail below.
Bill C-15’s key points can be summarized as:
- Nothing in the Act is to be interpreted as delaying UNDRIP’s application in Canadian law; (section 2)
- The purpose of the Act is to: (a) affirm UNDRIP as a universal international human rights instrument with application in Canadian law; and (b) provide a framework for Canada’s implementation of UNDRIP; (section 4)
- Canada must, in consultation and cooperation with Indigenous peoples:
- take all measures necessary to ensure that the laws of Canada are consistent with UNDRIP(section 5);
- develop and implement a national action plan to achieve the objectives of UNDRIP (section 6); and
- prepare an annual report on the measures taken to implement UNDRIP and the action plan (section 7).
Bill C-15’s preamble offers further guidance as to how it should be interpreted. The preamble is lengthy and dense; recognizing and affirming Indigenous peoples rights repeatedly. It acknowledges the historic and ongoing injustices Indigenous peoples face and affirms UNDRIP as a framework for remediating such injustices. It is well established that preambles matter and courts will consider them.[5]
Preambles can demonstrate legislative purpose (directly or indirectly),[6] which informs how a court will interpret a law’s substantive sections.[7] Similarly, preambles demonstrate legislative values that are to guide decision-makers and are therefore relied on in judicial review proceedings.[8] The weight given to a preamble is determined by the preamble’s clarity and specificity, and how it measures against other indicators of legislative purpose or meaning.[9] Bill C-15’s preamble is noticeably more robust than those in tabled in 2014 and 2016. This may indicate a strong legislative intent to breathe life into UNDRIP in Canada.
Section 2(3) also clarifies that Bill C-15 is not intended to be the only mechanism through which Canada intends or can reasonably be expected to implement UNDRIP. So, while Bill C-15 affirms UNDRIP, implementing UNDRIP will take on various forms depending on the circumstance and will not be circumscribed by the language of Bill C-15.
Finally, notably missing from Bill C-15 is any legal mechanism empowering Ministers to enter into agreements with Indigenous peoples to establish joint decision-making processes, which is expressly authorized in DRIPA. Perhaps this is because other federal legislation, such as the Impact Assessment Act,[10] and other federal policy already permits this.[11] However, as the benchmark for UNDRIP’s implementation in Canada, it is regrettable that such express authority has not yet been included in Bill C-15.
Bill C-15 affirms UNDRIP’s “application” but does not grant it the force of law
The language in Bill C-15 is different from other federal legislation that give international instruments legal effect in Canada. Specifically, Bill C-15 affirms that UNDRIP is of “application in Canadian law” and mandates that Canada ensure “that the laws of Canada are consistent with [UNDRIP].” However, the SCC has been clear that the implementing international instruments (i.e., UNDRIP) in Canadian legislation requires clear language to incorporate it by reference.[12] Similarly, the SCC has also held that international instruments have no binding legal effect in domestic law until implemented through domestic legislation.[13]
Therefore, while Bill C-15 seeks to implement UNDRIP, affirming the application of UNDRIP to Canadian law and seeking to ensure Canadian laws are consistent with UNDRIP, does not unambiguously adopt UNDRIP or give it force of law such that it is binding in Canada. Rather, as with previously proposed legislation on this matter, with Bill C-15 UNDRIP will inform and guide government action, and may be relied upon by the courts as an interpretive aid.
Application in “Canadian law” as compared to ensuring consistency with “the laws of Canada
The clear distinction between “Canadian law” and the “laws of Canada” in Bill C-15 arguably demonstrates an express legislative intent to take two approaches to legally implementing UNDRIP in Canada.
The phrase “with application in Canadian law” suggests that Bill C-15 affirms UNDRIP applies in interpreting legislation and to the Canadian common law Indigenous rights regime. In contrast, the phrase “the laws of Canada” suggests that UNDRIP will be a consideration when drafting legislation. The action plan and annual reports envisioned in the bill support this view.
Apart from a general requirement that Canada “take all measures necessary”, to implement UNDRIP, Bill C-15 is light on details regarding what Canada must do to achieve this. Therefore, it is unclear when “all measures necessary” may be exhausted and how we can assess whether Canada has met this positive obligation. We anticipate that “all measures necessary” will be approached in a balanced measure, whereby any competing interests and rights of Indigenous peoples and Canada are attempted to be reconciled.
It is also left unclear in Bill C-15 how we assess whether legislation is “consistent” with UNDRIP Again, we anticipate that Canada will similarly approach the issue by attempting to balance the interests of Indigenous peoples and Canada.
The potential impact of implementing UNDRIP
As noted earlier, Canada’s obligation to take all measures to ensure the laws of Canada are consistent with UNDRIP is ambiguous. Any disagreement over the interpretation of this obligation will likely be informed by UNDRIP. This is supported by Bill C-15’s clear and plain intent: taking all measures necessary to ensure the laws of Canada are consistent with UNDRIP and affirming UNDRIP’s application in Canadian law.
That said, UNDRIP cannot simply change the way we interpret and apply currently existing legislation; this will require detailed review and amendment together with Indigenous peoples. When it comes to interpreting laws, courts have said that if a section of a law is clear and unambiguous, international law cannot be used to change its meaning.[14] However, if there are multiple ways to interpret a section, the courts should avoid interpretations that would put Canada in breach of its international obligations.[15] This does not permit us to simply interpret legislation to conclude, without analysis, that the authentic meaning of a domestic law is the same as international law. Therefore, when a law or part of a law is ambiguous and both domestic and international law apply, we must start by asking “what is the real, authentic meaning of the domestic law.”[16] Legislation must be interpreted by examining its text, context and purpose.[17] UNDRIP will not change that.
The purpose or “authentic meaning” of Bill C-15 is further complicated by Canada’s obligation to do this important work in consultation and cooperation with Indigenous peoples. This consultation and cooperation requirement within Bill C-15 suggests that not only are Indigenous peoples to be consulted on legislation; Canada must also structure this consultation with a view to implementing UNDRIP, including Article 19 – the duty to obtain the free, prior and informed consent of Indigenous peoples.
If Bill C-15 becomes law, UNDRIP will not displace the common law Indigenous rights regime in Canada. However, Bill C-15 appears to impose greater obligations on Canada when consulting with Indigenous peoples such that the end goal must be obtaining free, prior and informed consent. The courts are not free to modify the SCC’s established regime on the basis of international law; but, the insertion of UNDRIP into the common law regime will likely require greater efforts by the Crown and may assist in resolving unsettled issues in the common law. Similarly, the courts may be equally relieved to know that UNDRIP no longer need be regarded as too-often misused.[18]
[1] Government Bill (House of Commons) C-15 (43-2) – First Reading – United Nations Declaration on the Rights of Indigenous Peoples Act – Parliament of Canada [Bill C-15].
[2] Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at paras 69, 79; Capital Cities Communications Inc v Canadian Radio- Television Commission, [1978] 2 SCR 141 at 172-173; Francis v the Queen, [1956] SCR 618 at 621.
[3] Mikisew Cree First Nation v Canada (Governor General in Council), 2018 SCC 40.
[4] Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44 [DRIPA].
[5] Bill C-15.
[6] Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (LexisNexis Canada, 2014) [Sullivan] at 448-449.
[7] Ibid.
[8] Ibid at 450; see also New Brunswick (Minister of Health and Community Services v C(GC), [1998] 1 SCR 1073 at para 1080; Chamberlain v Surrey School District No 36, [2002] 4 SCR 710 at paras 1-23.
[9] Sullivan at 452-453.
[10] Impact Assessment Act, SC 2019, c 28, s 1 [IAA], ss 39 and 93.
[11] Government of Canada, Department of Justice, Principles respecting the Government of Canada’s relationship with Indigenous peoples (2018).
[12] Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, para 51.
[13] Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at paras 69, 79; Capital Cities Communications Inc v Canadian Radio- Television Commission, [1978] 2 SCR 141 at 172-173; Francis v the Queen, [1956] SCR 618 at 621.
[14] Gitxaala Nation v Canada, 2015 FCA 73, para 16.
[15] Ibid, para 17.
[16] Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100 [Entertainment Software], para 78; see also Canada (Attorney General) v Kattenburg, 2020 FCA 164, para 31.
[17] Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, paras 120-121.
[18] Entertainment Software, para 77.