Judicial Interpretation of UNDRIP in Canada

[Photo by Christina Gray, October 22, 2019 at Gitxaała]

On June 21, 2023, the federal government released the UN Declaration Act Action Plan (Action Plan) which attempts to lay out the framework for following through on the commitments of the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA). The case law following the passage of UNDRIPA has been slow to develop, but there are signs it is headed in the right direction. The creation of the Action Plan by the federal government provides a useful foil with which to evaluate the developments in the courts.

In this blog post, we provide an overview of how Canadian courts have interpreted UNDRIPA and contrast it with the promises of the Action Plan. What we see is a judiciary that is still working to reconcile years of jurisprudence with this new legislative framework and an Action Plan that has more ambition than substance.

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in the Courts

Courts Optimistic Yet Cautious in Initial Decision about UNDRIP’s Potential in Canadian Law

In Saik’uz First Nation v Rio Tinto Alcan, 2022 BCSC 15, the Saik’uz First Nation claimed damages for harm to its Aboriginal fishing rights caused by a dam on the Nechako River. British Columbia Supreme Court addressed the recently passed UNDRIPA in speculative terms, while noting that it can potentially provide a framework to expand and acknowledge Indigenous rights:

It remains to be seen whether the passage of UNDRIP legislation is simply vacuous political bromide or whether it heralds a substantive change in the common law respecting Aboriginal rights including Aboriginal title. Even if it is simply a statement of future intent, I agree it is one that supports a robust interpretation of Aboriginal rights.^[1]Saik’uz First Nation v Rio Tinto Alcan, 2022 BCSC 15

Since Saik’uz, the courts have found UNDRIPA to be more than “vacuous political bromide,” but its impact has been slow to take hold. We see courts reference UNDRIP in three main ways:

1. The courts make a decision based on the merits of the case, but then mention UNDRIP and note that their decision is consistent with UNDRIP;
2. The courts suggest that UNDRIP creates substantive rights, but do not (yet) make this clear and definitive; and
3. The courts circumvent UNDRIP and decline to apply it.

At best, UNDRIP is persuasive authority to be relied upon. At worst, an argument framed solely around UNDRIP will fail.

UNDRIP supports Indigenous peoples’ right to regulate child and family services

In the “Bill C-92 reference”,^[2]Renvoi à la Cour d’appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis 2022 QCCA 185 the Quebec Court of Appeal used UNDRIP to bolster its analysis that s. 35 of the Constitution Act, 1982 included the right of self-government over child and family services. The court, in a first, articulated a clear harmony between UNDRIP and the s. 35 right to self-government, noting UNDRIP confirms this Indigenous autonomy. The UNDRIP analysis provided a basis for the court to expand its jurisprudence from basing Indigenous rights on a case by case and group-specific basis to applying the right to all Indigenous people.

The Bill C-92 Reference is on appeal to the Supreme Court of Canada.

The Action Plan states that Canada will “continue” to implement an Act respecting First Nations, Inuit and Métis children, youth, and families, which affirms the inherent right of self-government. In this case, the courts are much stronger than the Action Plan. By referencing UNDRIP itself, the courts are looking at the big picture of self-determination while the Action Plan is focused on continuing to implement a law that has been on the books for years.

UNDRIP could create substantive rights

In Servatius v. Alberni School District No. 70, 2022 BCCA 421, the British Columbia Court of Appeal (BC Court of Appeal) considered arguments by an evangelical Protestant mother that her children’s freedom of religion was unjustifiably infringed by their school hosting two demonstrations of Indigenous cultural practices: the smudging of a classroom, and a school assembly featuring a hoop dancer who said a prayer.

The BC Court of Appeal rejected the mother’s claim, but declined to rule on whether the UNDRIP creates “substantive rights under s. 25 of the Charter”. This leaves the door open to future courts finding that UNDRIP creates substantive rights within the existing constitutional framework. The Court did find that by seeking “to incorporate Indigenous culture and perspectives into the public school curriculum,” the provincial government’s conduct was consistent with the UNDRIP.

The Action Plan does not set out freedom of religion and freedom of expression of cultural beliefs. At Chapter 1, measure #101, there is general reference to traditional cultural expressions in relation to Canada’s intellectual property laws. There is no protection for cultural expression in schools. Neither the courts nor the Action Plan create substantive rights in this area, but the court’s commitment in Servatius is more concrete than the Action Plan’s because it supports schools honouring Indigenous cultural expression.

Labor law disregards UNDRIP

In Newcrest Red Chris Mining Limited v United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1-1937, 2023 BCLRB 10 an employer and union had a labor dispute over work at a mine. The mine is on the traditional territory of the Tahltan Nation (TN).

TN sought standing in the labor dispute, as they have numerous rights that were affected by the negotiations. TN had entered into an impact benefit and co management agreement with the employer and sought to ensure that any negotiated labor settlement would be consistent with the originally negotiated agreement. TN’s position was that their free, prior, and informed consent was based on the negotiated agreement and the suggested resolution by the mediator did not account for TN’s rights and title.

In a troubling holding, the Labor Board found TN did not have standing. Citing the labor code, the Board stated that the Tahltan Nation does not have a “direct and material interest in the outcome of the present proceeding,” as the proceeding is just about the “process” by which a collective agreement can be achieved “rather than the content of the first collective agreement.”

The Board then focused on the agreement itself, noting that it did not require that the Employer agree to any particular terms, but only that the Employer use “reasonable best efforts” to achieve certain terms and that, pursuant to the agreement, the Employer’s obligation to use “reasonable best efforts” to achieve those terms would end if the Union were to commence a strike.

The Board concludes in contrast that an arbitrator can decide the terms of a first collective agreement and consequently incorporate the international, constitutional, and statutory rights of the Tahltan “if the arbitrator deems it relevant.”

This may be an isolated case but is a concerning precedent. While the Board’s decision is consistent with the enabling statute and stays within the confines of labor law, it fails to properly acknowledge the importance of TN’s rights and any impact on them. Administrative law is an area that should be monitored, as it appears to be one of the slowest to accommodate UNDRIP.

Chapter 1, measures #32-34 of the Action Plan speak to free, prior, and informed consent including in specified administrative law venues. In this area, Nations should rely on the Action Plan for persuasive authority on the importance of consultation and collaboration, particularly in the context of natural resources projects as the case law appears incongruous at this point.

Nations must carefully consider how they make their resolutions

In George v. Heiltsuk First Nation, 2022 FC 1786, the court was asked to review a decision made by Heiltsuk Tribal Council via Band Council Resolution (BCR). Heiltsuk Tribal Council (HTC) had barred someone from their land via BCR, and the individual challenged the decision in the courts. HTC brought a motion to dismiss the application to review on the basis that the action was taken “consistent with its inherent right of self – determination and self-government, as recognized by Articles 3 and 4 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).” ^[3]Para 66

In what appears to be a cautionary tale for Indigenous governments, rather than evaluating the substance of the decision, the court reviewed the actual verbiage of the BCR. Because the standardized text opened with: “WHEREAS sections 81(1)(p.1) and (p.2) of the Indian Act empower the Council…” the court found that “the impugned actions were undertaken by HTC pursuant to power granted under federal legislation,” and found they did have authority to review. The seeming innocuous language at the top of the BCR was the difference between HTC having its own power rather than simply being a “federally empowered decision maker.” The court concluded with a statement noting the nuanced and complicated relationship between indigenous and Canadian governments,

“As this Court is increasingly called upon to create space for Indigenous law within our jurisdiction, the Court will endeavor to delineate its jurisdictional boundary in a manner that is respectful of Indigenous peoples and their legal traditions, while taking into account their assertion of self-government and the Government of Canada’s endorsement of the UNDRIP through the federal UNDRIPA.”^[4]Para 76

Case to watch – Gitxaala v British Columbia (Chief Gold Commissioner)

In Gitxaala v British Columbia (Chief Gold Commissioner), 2023 BCSC 29, Gitxaala Nation is challenging parts of the mineral tenure regime in British Columbia. Under the current system (“free-entry”), there is no duty on any miner to consult with any First Nation prior to staking a claim for mineral rights on a parcel of land.

Gitxaała’s position is that the free-entry system does not respect the Crown’s “duty to consult,” breaches the test set out in Haida Nation v. British Columbia (Minster of Forests), 2004 SCC 73 and has had an adverse effect on their rights or title. Gitxaała asserts that UNDRIP provides legal standards the court can use to invalidate legislation that violates the duty to consult and is otherwise inconsistent with UNDRIP.

The Action Plan binds the Canadian federal government, so it is not as relevant here, but in general, the Action Plan supports the requirement of free, prior, and informed consent (FPIC). It however commits only to “developing guidance” and making “recommendations” rather than shifting policy to immediately implement FPIC in a constructive way. While British Columbia has its own legislation incorporating UNDRIP, Gitxaała’s analysis will be broadly relevant nationally on the interplay between UNDRIP and consent.

Bill S-13 Amending the Interpretation Act

On June 8, 2023, the federal government introduced Bill S-13^[5]https://www.parl.ca/DocumentViewer/en/44-1/bill/S-13/first-reading that would amend the federal Interpretation Act to include a non-derogation clause to uphold section 35 Aboriginal and treaty rights. The bill states that the law should be interpreted to uphold, and not diminish, the rights of First Nations, Inuit and Métis recognized and affirmed by section 35 of the Constitution Act, 1982. Ideally this will further bolster the recognition of the rights of Indigenous peoples in the courts, but this remains to be seen.

Conclusion

The journey towards integrating UNDRIP into Canadian law is like any new recipe, it includes a mixture of optimism and caution. While initial court decisions acknowledge UNDRIP’s significance and potential, progress has been gradual and varies in different areas of the law.

Canadian courts have started to take judicial notice of UNDRIP in their judgments, demonstrating a willingness to explore its impact on Indigenous rights. But the process remains evolving and complex, requiring the reconciliation of long-established jurisprudence with this new legislative framework. Courts have taken different approaches, sometimes making decisions consistent with UNDRIP or hinting at its substantive rights, while in other instances, they have avoided its direct application.

The Action Plan is a crucial step towards implementing UNDRIP, but it is not without criticism. Although it affirms a commitment to Indigenous rights, the Action Plan is criticized for lacking substantive measures and concrete changes. While courts are beginning to embrace UNDRIP in their interpretations, the Action Plan should strive to match this commitment and substance to ensure the effective protection of Indigenous rights.

Moving forward, a harmonious and constructive approach between courts, government, and Indigenous communities will be vital to realizing the true potential of UNDRIP in Canadian law. The commitment to respecting Indigenous autonomy and self-determination, as enshrined in UNDRIP, should continue to guide these efforts, leading to a more equitable and just society for all.