JFK Law is proud to announce that Sara Mainville and Christina Joynt have co-authored an article in the Canadian Foreign Policy Journal titled, “Empowering Indigenous Peoples as Architects of their Law and Jurisdiction: A critical analysis of UNDRIP implementation and legislative reconciliation in Canada”.
The article critically examines implementation of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) in Canada through the lens of “legislative reconciliation”.[1]
What is legislative reconciliation?
UNDRIP represents a crucial framework for advancing truth and reconciliation in Canada. Central to this effort is the concept of “legislative reconciliation”. Coined by Professor Naiomi Metallic, this term describes the process of legislative branches of government in Canada passing or amending laws not to create Indigenous rights, but to recognize and facilitate the exercise of pre-existing inherent jurisdiction and rights.[2]
The Truth and Reconciliation Commission (“TRC”) explicitly called for Canada to adopt and implement UNDRIP as a framework for reconciliation, emphasizing the need for Canadian law to be transformed to support the empowerment of Indigenous peoples, and enable them to become the “architects and interpreters” of laws affecting their collective rights and interests.[3]
The article argues that, despite federal and provincial commitments like the TRC, the current approach to UNDRIP implementation in Canada does not achieve legislative reconciliation, primarily due to a fundamental failure to fully integrate Indigenous perspectives into lawmaking and recognize the inherent rights and jurisdiction of Indigenous peoples.
Legislative Approaches to UNDRIP Implementation
Since recognizing UNDRIP in 2016, federal, provincial and territorial governments in Canada have pursued three main legislative avenues for implementation: enacting specific implementing legislation (like British Columbia’s Declaration on the Rights of Indigenous Peoples Act[4], Canada’s United Nations Declaration Act[5], and Northwest Territories’ United Nations Declaration on the Rights of Indigenous Peoples Act[6]), enacting general legislation with a stated UNDRIP purpose (such as the Act respecting First Nations, Inuit and Métis Children, Youth and Families[7] or the now-lapsed Bill C-61[8]), and amending existing legislation (like provincial and federal Interpretation Acts[9] or British Columbia’s Environmental Assessment Act).[10]
Critical Gaps and Challenges
While federal, provincial and territorial legislative efforts represent steps towards aligning Canadian law with UNDRIP, the authors critically analyze their significant shortcomings. For example, there has been considerable confusion regarding the legal effect and operationalization of implementing legislation like DRIPA and UNDA, leading to costly litigation and inconsistent judicial findings.[11]
Similarly, legislation that the federal government has attempted to enact has numerous limitations. For example, Bill C-61 failed to recognize the human right to water, extend water ownership beyond reserve lands, provide for discretionary source water protection, include Free, Prior, and Informed Consent (“FPIC”) provisions, and offer sufficient funding. Amendments to existing legislation also face challenges, including limited Indigenous participation in the amendment process and differing interpretations of what “consistency” with UNDRIP means.
Barriers to Meaningful Indigenous Participation
The authors detail several systemic barriers that prevent meaningful Indigenous engagement and consequently hinder legislative reconciliation efforts through UNDRIP implementation. Governments consistently fail to design consultation processes that facilitate meaningful input or support Indigenous communities’ ability to consent or withhold consent. Efforts to include Indigenous voices, such as the Action Plan Advisory Committee under the Federal Action Plan, are often limited and symbolic, lacking binding authority, reflecting a broader issue of overreliance on ministerial discretion.
Another critical barrier is the lack of adequate capacity and funding for Indigenous peoples to participate effectively in implementation processes. The demand for such funding significantly exceeds the allocated amounts, diverting focus from implementation work to simply securing resources.
Finally, the absence of concrete, specific, and actionable government mandates for UNDRIP implementation across federal departments leaves much to bureaucratic interpretation and discretion, slowing progress and accountability. Existing mandates also tend to centre colonial institutions rather than Indigenous governments.
Path Forward: Recommendations for Genuine Legislative Reconciliation
To move towards genuine legislative reconciliation, the article emphasizes that governments must urgently address these systemic issues. This requires:
- Access to adequate and flexible funding for Indigenous participation without burdensome application processes.
- Supporting Indigenous capacity building, including training staff dedicated to UNDRIP implementation.
- Building government-to-government trust through clear communication, transparency, and accountability to dispelling misconceptions and foster collaborative approaches.
- Establishing clear and coherent federal mandates with precise timelines and accountability to drive timely and effective progress across all departments.
- Addressing the enduring legacy of the Indian Act by supporting modern treaty holders in their governance capacity. By recognizing and supporting unique governance structures and capacities of Indigenous communities, governments can create a more inclusive and equitable process that reflects the diversity of Indigenous perspectives and priorities.
The authors assert the continued failure to achieve legislative reconciliation compels Indigenous peoples to pursue costly, case-by-case litigation to protect and assert their rights, highlighting the urgent need for governments to move beyond symbolic gestures towards concrete action and genuine partnership.
To learn more about the necessary steps for advancing UNDRIP implementation and legislative reconciliation in Canada, explore the full article here.
[1] United Nations (General Assembly). United Nations Declaration on the Rights of Indigenous Peoples. A/RES/61/295 (Annex), UNGAOR, 61st Sess, Supp No 49, Vol III, UN Doc A/61/49 (2008) 15.
[2] Metallic, Naiomi. “Aboriginal Rights, Legislative Reconciliation and Constitutionalism.” Review of Constitutional Studies 27, no. 2 (2022): 1–36.
[3] Truth and Reconciliation Commission of Canada, Calls to Action, para. 43.
[4] Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c. 44.
[5] United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2019, c. 14.
[6] United Nations Declaration on the Rights of Indigenous Peoples Implementation Act, SNWT 2023, c. 36.
[7] An Act Respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c. 24.
[8] Bill C-61, An act respecting water, source water, drinking water, wastewater and related infra structure on First Nations lands, 44th Parl, 1st Session, online: https://www.parl.ca/legisinfo/ en/bill/44-1/c-61.
[9] Interpretation Act, SBC 2021, c 36; Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts, 1st session, 44th Parl, 2023.
[10] Environmental Assessment Act, SBC 2018, c. 51.
[11] For example, in The Nuchatlaht v British Columbia, 2023 BCSC 804, the Court completed a full analysis and stated that its analysis was consistent with Article 3 of UNDRIP (para 419). In other instances, the Courts in British Columbia have stated that UNDRIP creates substantive rights but do not make a clear or definitive finding. For example, in Saik’uz First Nation v Rio Tinto Alcan, 2022 BCSC 15 the Court stated: “[I]t 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 robust interpretation of Aboriginal rights. Nonetheless, as noted above, I am still bound by precedent to apply the principles enunciated by the Supreme Court of Canada to the facts of this particular case and I will leave it to that Court to determine what effect, if any, UNDRIP legislation has on common law (para. 212). There are finally instances where the courts circumvent UNDRIP and decline to apply it. For example, the Court in Servatius v Alberni School District No. 70, 2022 BCCA 421 stated that “[t]he courts in BC have not decided the extent to which UNDRIP creates substantive rights under s. 25 of the Charter, and it is not necessary to decide it here as the issue is not raised on this appeal (para 46).