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B.C. mulls potential promise and pitfalls of UNDRIP

UN declaration could be the path to Indigenous reconciliation – or legal quicksand
Aboriginal law specialist Robin Junger: “I would think that if there is one bill that nobody will dare vote against, it’s this one” | Nelson Bennett

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has been formally adopted in B.C.

Whether it will be the key to reconciliation with Indigenous people or a legal labyrinth that ends up conflicting with Canadian constitutional law is a matter of some speculation.

At this point, in B.C. at least, it appears to be more of a mission statement than law, and for the rest of Canada UNDRIP is still something of a riddle – one that has stumped some legal experts, including a former Supreme Court chief judge.

Should the federal government also pass UNDRIP legislation, the first question may be whether B.C.’s own implementation of UNDRIP harmonizes with the federal version.

Bill 41 – which implements UNDRIP in B.C. – was passed in the B.C. legislature two weeks ago. It passed unanimously.

It will still require a cabinet order to put it into effect. And while it is intended to inform policy, it is not a law or international convention or treaty.

“Bill 41 doesn’t give the UN declaration itself the force of law and doesn’t create any new laws and new rights,” Scott Fraser, minister of Indigenous relations and reconciliation, said during a lengthy debate at third reading.

Basically, Bill 41 requires that all laws in B.C. are consistent with UNDRIP.

UNDRIP also contains a clause that some have interpreted as a potential veto for First Nations opposed to development in their traditional territories. However, a number of Indigenous leaders and lawyers have taken great pains to explain that the “free, prior and informed consent” discussed in UNDRIP is not a veto any more than the “consent” referenced in a number of Supreme Court of Canada decisions on Indigenous rights and title can be interpreted as a veto.

At least one expert thinks that some First Nations may be under the impression that “consent” does, in fact, mean “veto.”

“It says ‘consent,’” Robin Jun-ger, a lawyer specializing in Indigenous law, said at a recent presentation on Indigenous reconciliation sponsored by McMillan LLP. “And if I was a First Nation negotiating anything related to this, I would believe consent means consent and no means no.”

Despite the concerns that have been raised about Bill 41, Junger suggested that no politician would dare vote against it.

In B.C., that may be because MLAs have been persuaded that UNDRIP, as enacted by Bill 41, will be nothing more than a high-level guidance document for policy-makers.

Even so, it may raise legal questions that ultimately may have to be resolved by the courts – questions such as one posed by Ellis Ross, a Liberal MLA and former chief of the Haisla Nation: “Can somebody tell me what happens when the Crown is at the table with three or four different First Nations, and three First Nations agree but one doesn’t?”

Ross said he never got a satisfactory answer to that question.

The extent to which UNDRIP will inform policy decisions, and to what extent it may conflict with Section 35 of the Canadian Constitution or previous Supreme Court decisions, is the matter of some debate.

“If you know what it means, maybe you can talk to former Supreme Court of Canada Justice John Major and explain it to him, because he doesn’t,” Junger said. “Nor do I.”

Major had raised questions about the federal government’s attempts to enshrine UNDRIP through Bill C-262, which ultimately died in the Senate.

Jody Wilson-Raybould – then Canada’s minister of justice and attorney general – told the Assembly of First Nations in 2016 that UNDRIP was “unworkable” within Canadian law.

Despite the opinion of his former attorney general, Prime Minister Justin Trudeau has promised to once again try to implement UNDRIP federally. Asked if he thought that a minority government and “fractured Senate” will be able to pass UNDRIP this time, Junger said he thinks it can.

“I would think that if there is one bill that nobody will dare vote against, it’s this one,” Junger said.

Dwight Newman, Canada Research Chair in Indigenous rights in constitutional and international law at the University of Saskatchewan, told Business in Vancouver that the B.C. government has addressed his main concern about the federal Bill C-262, although he expects Bill 41 will present its own challenges in interpretation.

“Bill 41 is different from Bill C-262 in not having the operative section C-262 had that said UNDRIP immediately ‘has application in Canadian law,’” Newman told BIV.

“Many of the concerns I expressed on C-262 were about that section of the bill, which I thought had the potential to see the courts being immediately asked to apply UNDRIP in unpredictable ways.

“Bill 41 sets up a complex process where different interpretations of parts of UNDRIP will have to be considered as they work their way through adjusting legislation in British Columbia.”

It is worth noting that the BC Chamber of Commerce recommended that UNDRIP be used as a basis to reform B.C. laws with respect to Indigenous relations, with the aim of achieving more certainty for business.

But if Bill 41 merely enshrines UNDRIP as a kind of high-level guidance document, as opposed to creating new laws, and if it does not grant First Nations any kind of veto powers, it begs the question of why so many First Nations leaders feel so strongly about its adoption.

“UNDRIP is vital because it expresses basic human rights norms – including the Universal Declaration [of] Human Rights – in specific context of Indigenous Peoples,” said Douglas White III, who is a lawyer, a Snuneymuxw First Nation band councillor and the author of a recent 92-page analysis of the legal definitions of “consent” within the context of UNDRIP and Canadian law.

“As such, it speaks to norms Canadians have long accepted for all peoples, but have failed to apply to Indigenous Peoples. This is why the Truth and Reconciliation Commission said we need to use it as the framework for relations within Canada.”

In his paper, White points out that the Supreme Court of Canada has already defined the concept of “consent” in a number of legal precedents, such as the Tsilhqot’in decision, and yet has made it clear that that does not translate into unconditional veto powers for First Nations.

“The Supreme Court of Canada has not explicitly considered terms such as ‘free,’ ‘prior’ and ‘informed’ in relation to consent,” White writes. “However, Canadian law has evolved through development of the duty to consult and accommodate such that all of these elements can be assumed to be a part of the domestic understanding of consent.”

Although Ross and Mike de Jong raised questions about Bill 41 that Fraser sometimes struggled to answer, both Liberal MLAs ultimately voted in favour of its passage, as did every other member of the legislature.

Ross said his main concern now with Bill 41 and UNDRIP is that it may be invoked by government as a pretext to oppose certain projects.

“Nothing really should change, if we believe what the B.C. government said in the legislature,” Ross said. “But it’s yet to be seen if government will delay decisions or make decisions on politically incorrect projects like fish farms or Trans Mountain expansion and use this bill as their reasons.”

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