In 2007, the Canada refused to sign the United Nations Declaration on the Rights of Indigenous People (UNDRIP), a decision that was reversed only in 2016. Still, the federal Parliament has yet to adopt and implement UNDRIP. This November, British Columbia made history as the first province to pass legislation that will make UNDRIP part of its law. As the first successful Canadian attempt at giving the declaration legal force, this marks a huge step forward for reconciliation. Or does it? A critical evaluation of BC’s Declaration of the Rights of Indigenous Peoples Act (also known as Bill 41) and the impact of similar legislation in Bolivia can help predict the impact post-Royal Assent.
Bill 41 has three purposes: to affirm the application of the declaration to the laws of BC, to contribute to the implementation of the declaration, and to support the affirmation of and develop relationships with Indigenous governing bodies. The bill is a promise to gradually filter new and old legislation through the lens of UNDRIP, amending laws to bring them in line with the declaration and developing annual reports. The legislation was also drafted as a joint effort between the First Nations Leadership Council and the Ministry of Indigenous Relations and Reconciliation. There is partnership, there is accountability, there is...progress?
A few parts stand out: an expanded concept of “indigenous governing bodies,” the requirement to take “all measures necessary” to implement UNDRIP, and the question of interpreting “free, prior and informed consent.”
An Indigenous governing body in the law is described as “an entity that is authorized to act on behalf of Indigenous peoples that hold rights recognized and affirmed by section 35 of the Constitution Act, 1982”. Bill 41 expands the range of entities with whom the government can form agreements. Previously, only incorporated organizations and bands created under the Indian Act could be party to agreements. Now, hereditary governments and coalitions of Indigenous groups are recognized. BC’s Minister of Indigenous Relations and Reconciliation, Scott Fraser, affirmed this in the Bill’s second reading saying: “It will allow us the flexibility to recognize more forms of Indigenous governments than we have been able to do in agreement-making”. Legitimacy of Indigenous groups will no longer be predicated on their conformity with colonially sanctioned structures of authority. Instead, authority given by an Indigenous community or communities to act on their behalf will be recognized. Indigenous interests will be better represented now that a plurality of representative groups is allowed at the bargaining table.
Other than the new definition of Indigenous governing body, the legislation is highly conservative. It does not require any immediate, sweeping change to BC’s laws, only a gradual revision. However, one provision that could be a source of dispute is section 3, which states “the government must take all measures necessary to ensure the laws of British Columbia are consistent with the Declaration”. This language leaves room for significant judicial interpretation of what measures constitute “all necessary” to bring BC’s laws in line with the declaration. “All measures necessary” is a strict standard; it is not all reasonable measures. This phrase does not allow the legislature to attempt compliance but accept that they fell short due to excessive difficulty or cost. Section 3 implies an obligation of result, and the only possible result is full compliance with the declaration. As such, opponents can’t focus on whether full compliance is reasonable — the legislation ensures full compliance is the baseline. Arguments would instead focus on the text of UNDRIP; how does a province fully comply with an international declaration? UNDRIP has yet to wield binding force in Canadian law, so its interpretation in a Canadian context remains unknown.
Some would favour a less-expansive interpretation of the rights enshrined in the declaration, especially those concerned with Article 32.2: “States shall consult and cooperate in good faith with the indigenous peoples...in order to obtain their free and informed consent prior to the approval of any project affecting their lands”. At the federal level, the article raises questions over whether it amounts to an Indigenous right to veto resource development projects. The BC government’s factsheet on the new legislation for mining, mineral exploration and oil and gas companies guards against this concern by stating outright that the bill “does not change how [the Ministry of Energy, Mines and Petroleum Resources] consults with First Nations nor how operational decisions are made” . This means the standard of consultation remains at the level set by the Supreme Court of Canada in Haida Nation v British Columbia (Minister of Forests), which states at paragraph 42 “there is no duty to agree; rather, the commitment is to a meaningful process of consultation”.
Other than for reasons of established precedent, the likelihood of the courts interpreting free, prior and informed consent as a veto is slim because it would imply a reduction of Crown sovereignty. Canada is still far from contemplating shared sovereignty, so the Court is more likely to take small steps towards a stricter standard. Furthermore, Article 46 of UNDRIP states that nothing in its text may be interpreted as authorizing “any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States”, thus it explicitly guards against the veto interpretation of the consent requirement. It is more likely that the Supreme Court of Canada will revise the duty to consult standard for BC projects to emphasize the “free, prior and informed” aspects. For example, they may require companies clearly demonstrate they refrained from putting undue pressure on Indigenous groups, engaged with groups earlier and over a longer period, and provided comprehensive, unbiased information about project impacts.
To date, the only country to fully adopt UNDRIP as domestic national law and later as part of its Constitution is Bolivia. Bolivia’s first Indigenous president, Evo Morales, dismantled the Ministry of Indigenous and First Peoples Affairs “under the logic that indigenous peoples’ demands are to be incorporated into all facets of government,” writes Roberta Rice, adjunct professor at the University of Guelph. In Canada, a similar proposal to abolish the Indian Act came up in 1969, but the effort was derided as a final step in the process of assimilation and thus heavily protested. In Bolivia, where Indigenous people constitute a bit over half of the population, such a change makes more sense than it does in Canada where the Indigenous people make up 4.9 per cent of our population. Indigenous peoples in Canada have maintained their interests are best served by continued legislative recognition of difference, and attempts at systemic incorporation of Indigenous interests may, ironically, lead to further marginalization. It is unlikely that BC would follow Bolivia’s lead and close the Ministry of Indigenous Relations and Reconciliation. Here, the Canadian context makes all the difference.
Bolivia’s incorporation of the declaration into its constitution has also allowed “existing indigenous territories as well as municipalities with a substantial indigenous presence [to] convert themselves into self-governing entities,” according to a report by the Centre for International Governance Innovation (CIGI). However, the State has been cautious to ensure the step towards self-determination does not overthrow the sovereignty of the Bolivian government. Specifically, Bolivia’s Constitution “does not establish the right of indigenous peoples to free, prior and informed consent, but merely to prior consultation concerning planned measures affecting them, such as mining and oil or gas exploration,” according to the CIGI report. Despite UNDRIP’s enshrinement in the Bolivian Constitution, the fullest interpretation of free, prior and informed consent has not been allowed. Indigenous populations are reminded their land is no longer theirs alone, and its exploitation is subject to their consultation but not their consent. For those opposing UNDRIP in Canada, the Bolivian example provides a powerful counterargument. A country with a seemingly proactive and progressive approach to Indigenous relations and an Indigenous president does not have an Indigenous veto.
However, a comment on Bolivia’s progressive Indigenous relations would be dishonest without speaking to the current situation in the country. After months of citizen protest, Morales resigned and was exiled from his country. Diego von Vacano, a Bolivian political scientist, says “[Morales] rallied his Indigenous base through the rhetoric of racial distinctions, which has now polarized much of the country,” leading to his downfall. Morales’s efforts at redistributing wealth and empowering Indigenous groups led to resentment among Bolivians of mixed or European descent and Indigenous groups. The Bolivian example is a sobering reminder of the delicacy of reconciliation efforts, and the limits of legislative and constitutional change.
No rights framework is a silver bullet that will undo centuries of racial tension and inequality. BC’s adoption of UNDRIP is an important step forward, but the hard work of making the rights matter for all people of BC, Indigenous and non-Indigenous, starts now.
Corrine Tansowny is a first-year student at McGill Law. Prior to law school, she earned her HBA from the Ivey Business School and an English degree from Western University, and she spent two years leading corporate partnerships for a non-profit closing Canada’s Indigenous unemployment gap. Her interests lie at the intersection of constitutional law, the environment and Indigenous rights.