Does Bill C-262 implement the UNDRIP? Senator Sinclair says no

I have been recently about the United Nations Declaration on the Rights of Indigenous Peoples and its consequences for Canadian law. I have no doubt they will be significant. The question is, what form will they take?

My first article on the topic, “Three Good Reasons Why UNDRIP Can’t Be Law – And One Good Reason Why It Can”, was published in the January 2017 issue of The Advocate. I argued there that, despite the many objections a domestic court might make to considering the Declaration in the course of statutory or constitutional interpretation, such arguments may prove very hard to reconcile with the Honour of the Crown doctrine. How can the Crown tell the world we are going to live up to the Declaration, then tell Canadian courts to pay it little mind?

More recently, I wrote an article (and tweeted) about what legal effect Bill C-262, the United Nations Declaration on the Rights of Indigenous Peoples Act, gives to the Declaration in domestic law. My conclusion, in short, was that while the bill can readily be mistaken for implementing legislation, it does not immediately implement the Declaration in federal law. Instead, it creates mechanisms to encourage the Declaration’s implementation over time–possibly as long as twenty years. You can read my article on LinkedIn or CanLII (2018 CanLIIDocs 252).

A week after my article came out, debate resumed on the second reading of C-262 in the Senate. The bill’s sponsor there, Sen. Murray Sinclair, gave a powerful speech in favour of it. I encourage you to read it in full. My quotation below is long but also very selective; I am focussing on what Sen. Sinclair says the bill’s effect on the Declaration will be in Canadian law (my underlining):

Implementation of the declaration by way of this legislation is fundamentally necessary.

First, it sets out a legislative framework for a national reconciliation process that would harmonize federal laws in accordance with the declaration.

Second, it responds to a commitment made by the government to implement the Truth and Reconciliation Commission of Canada’s Calls to Action and the priority outlined in the Prime Minister’s mandate letter to the Minister of Indigenous Services to implement the declaration by taking an active role to enable those rights to be exercised.

Third, it provides for the creation of a national action plan.

Finally, it calls for annual reports on how progress is being made.

…This bill will ensure that the relationship and framework we develop moving forward will reflect the recognition of Indigenous peoples’ rights to self-determination. Again, this bill does not seek to implement the declaration itself; it seeks to recognize the principles contained within the declaration as the framework for developing our new relationship.

When the declaration was adopted, Victoria Tauli-Corpuz, Chairperson of the UN Permanent Forum on Indigenous Issues, said this:

Effective implementation of the Declaration will be the test of commitment of States and the whole international community to protect, respect and fulfil indigenous peoples’ collective and individual human rights. I call on Governments, the United Nations system, indigenous peoples and civil society at large to rise to the historic task before us and make the United Nations Declaration on the Rights of Indigenous Peoples a living document for the common future of humanity.

This bill represents a turning point for us in this country. It is a tangible and practical means for Canada to meaningfully demonstrate that it is, in fact, committed to a new relationship with Indigenous nations. How we endeavour to live together matters.

Honourable colleagues, how will history record your contribution to this renewed relationship? How will you contribute to making Canada the kind of country it always thought it was and wants to be?

Let me begin by reminding you the bill itself doesn’t raise the implementation of the declaration as its objective. The bill talks about calling upon Canada to do an analysis of existing legislation to see which laws are currently inconsistent with the declaration. That’s primarily what this bill is about.

I think that exercise is one Canada is going to have to go through, as are the provinces. They’re going to have to look at their legislation to determine what’s incompatible, inconsistent or what conflicts with the declaration before they engage in a dialogue on reconciliation which uses the declaration as a framework for reconciliation.

Even in our call to action in the TRC report, the TRC report recommended the parties implement the UN declaration as a framework for reconciliation, not for purposes at that point of simply implementing it to change the laws automatically.

It’s always anticipated there would be a process of dialogue to see what legislation is going to be affected. I think what that speaks to is this particular bill probably does not necessarily call for an amendment on that basis. When the issue of the declaration and what comes out of the report and when the declaration itself is before us for consideration, that could be an issue then. I suspect it will be unlikely that the Government of Canada will ever simply pass a law declaring the UN declaration as the law of Canada. That is mainly because it impinges not only on federal law but also on the laws of the provinces. And the laws of the provinces are going to have to be considered by each provincial entity.

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I don’t ever foresee a day when that’s going to happen. I think we need to talk about what the committee will report about. I think the committee and the observations of the committee, based upon the evidence of witnesses, will be of benefit to what we say to the other place about what this bill can and can’t do….

Let me begin by saying there’s no doubt the UN declaration itself, whether it’s with reference in this bill or elsewhere, is going to become a tool of interpretation that will be used by courts when it comes to analyzing the issue of Indigenous rights generally and Canada’s responsibility vis-à-vis as representatives of the Crown or upholding the honour of the Crown. I think it will probably always be part of our legal lexicon going forward.

I don’t think that particular terminology makes the UN declaration as the law of the country. I think that particular interpretation simply says the principles in the UN declaration that enhance or recognize the human rights of Indigenous people or the collective rights of Indigenous people are the laws of the country, a simple statement, which is the case now. I have no difficulty with that particular element.

I don’t think it has the potential or the risk of creating a situation where the declaration can be used to override an existing federal or provincial law. I have no difficulty with that. There are lots of legal opinions that the experts who are called to the committee would be able to provide on that point, because it’s the UN international legal experts who talk about the role of international agreements, covenants and declarations, because it’s a declaration. It’s not a covenant and it’s not an international agreement. As a declaration, it has limited legal impact. As a covenant, it would have more of an impact. As an international agreement, of course, it would be a legally binding document.

I think there we would hopefully benefit from the expertise of international legal experts who would point out those differences. This is the kind of bill which primarily says: Let’s look at our laws and see what we have that’s in conflict with the existing declaration.

Assuming C-262 becomes law (as seems likely), I expect courts will find Sen. Sinclair’s remarks helpful as they determine the Declaration’s force and relevance in our law. Courts should also bear in mind, however, that the Declaration’s domestic legal force may not derive entirely from statute, but also from customary and conventional international law which, in some provisions at least, it represents.

Relaunching my web site

After three years of serving as Executive Legal Officer at the Supreme Court of Canada–and therefore not maintaining my web site–I am back in private practice with Miller Thomson LLP in Vancouver and Ottawa. So I’m relaunching my web site. 

The new site is mostly a blog about the reception of public international legal norms in Canadian law, to complement my continued writing on that subject.