Harmonizing Canadian law with UNDRIP can’t be forced

Would require that Indigenous peoples receive free, prior and informed consent for anything that affects their lands or rights

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Joseph QuesnelCanada’s Senate or an election are the only things that could amend or end a badly-worded and contentious bill that seeks to harmonize federal laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Bill C-15 has received third reading in the House of Commons and now goes to the Senate for its consideration and possible amendment before receiving royal assent. It’s widely believed the federal government aims to turn the bill into law before an election call.

However, the bill is significantly flawed and in desperate need of amendment.

Most of the provisions of UNDRIP itself aren’t too troubling, and it aligns Canada with some of the most important legitimate aspirations of Indigenous peoples of the world. It is right to recognize Indigenous rights to self-determination when these peoples have faced attempted assimilation – often in brutal or repressive ways – at the hands of various state actors.

However, Canada needs a solution that stresses a made-in-Canada formula, not one made by the UN or in Geneva.

The real area of contention is the requirement that Indigenous peoples receive free, prior and informed consent for anything that affects their lands or rights. There are two problems with this. The first is this is never defined in UNDRIP, let alone this federal bill. Second, Canada already has a very well-developed legal doctrine of duty to consult and accommodate Indigenous peoples. It allows Canada to enter into mutually beneficial agreements with First Nations. We interfere with that at our peril.

Resource proponents have continually asked the government, at a minimum, to provide more clarity on this aspect. That clarity hasn’t been provided.

UNDRIP is the slow drip eroding Canadians’ rights by Brian Giesbrecht

Federal Justice Minister David Lametti has repeatedly stated that the bill doesn’t interfere with Canada’s duty-to-consult doctrine, yet the government has declined to even consider amendments to clarify what consent means in this bill or provide a clause that asserts that nothing in the bill will interfere with our made-in-Canada processes.

Those who draft legislation take great pains to define every term in bills, so it strikes one as odd that this bill is left unclear in some significant ways. Why not put the critics’ minds to rest?

The Globe and Mail’s editorial board had an interesting theory on this in a recent piece: “The lack of clarity allows the government to straddle the fence, and to drop hints out of both sides of its mouth.”

The Assembly of First Nations (AFN) has been pressuring the government to have this bill made law before the next election. But the government should be more focused on improving this legislation for all Canadians – including the many Indigenous communities that oppose this legislation as written or have signed agreements with companies – than trying to impress this organization.

However, the government has shown itself tone-deaf to the many First Nations communities and organizations that have expressed opposition or concern about this bill.

It’s not surprising this lack of clarity exists given that, in April, the government imposed a motion of closure to limit debate on this bill. This is the same government that pledged not to use legislative manoeuvres in an undemocratic way.

The only true hope is that the Senate performs its function in providing feedback to flawed legislation. It must provide substantive amendments that, at a minimum, define consent in this context and state specifically that the law will not interfere with Canada’s existing duty-to-consult doctrine. Preambles matter because courts and legislators refer to them in understanding a law’s intent.

The less desirable solution is for an election to be called that kills all legislative activity in the House of Commons and the Senate. But this leaves no room for creativity or compromise. It simply kills the bill on the order paper.

There’s nothing illegitimate in our legislative system, with the Senate providing substantial pushback on bills it feels are problematic. That’s its job. However, expect self-interested outrage from supporters of the bill when the Senate fights back. All of a sudden, they will become the Senate’s worst enemy.

The Senate also speaks for regions – such as those in the West where many of these projects with Indigenous peoples take place – as well as minorities. Indigenous communities have the most to lose with an improperly worded law that potentially affects their benefit agreements or partnerships with resource companies.

Prioritize good laws over politically expedient decisions by amending this bill before it’s too late.

Joseph Quesnel is a senior research associate with the Frontier Centre for Public Policy.

Joseph is one of our Thought Leaders. For interview requests, click here.


The views, opinions and positions expressed by columnists and contributors are the authors’ alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.

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