British Columbia is about to become the first place in Canada to implement the United Nations Declaration on the Rights of Indigenous People.
The NDP provincial government in late October introduced a bill that calls on it, working with Indigenous people, to “take all measures necessary” to align the laws of B.C. with UNDRIP. The UN passed the declaration and its 46 articles as a non-binding resolution in 2007. The B.C. bill is on track to become law as soon as this week.
And yet it is still not clear what UNDRIP in B.C. law will mean, or what the consequences will be. There are concerns about the phrase “free, prior and informed consent” in a number of articles in the declaration – including around resource development. The meaning of consent is undefined and the impact is difficult to predict. This page has previously expressed these worries, but there may be a silver lining in B.C.’s move to codify the declaration.
When the bill was introduced, Premier John Horgan said the idea that consent equals a veto is false. Mr. Horgan said UNDRIP is about making sure Indigenous people are “full participants in discussions about development.” But in an interview with The Globe and Mail, he acknowledged the impact of UNDRIP will be unknown until the courts rule on inevitable legal challenges based on the declaration.
“Consent is subjective,” Mr. Horgan said. If this were stated in the context of sexual relations, such an observation would not fly. On UNDRIP, Mr. Horgan said the subjective nature of consent is “where the courts may have an interpretation.”
Canada, though, already has settled law and constitutional provisions that spell out Indigenous rights and the parameters of the duty to consult. A number of key Supreme Court of Canada decisions have come out of B.C.
Canada also has an extensive and lengthy (and slow and costly) system of industrial project review – one Ottawa has revamped with a greater emphasis on Indigenous consultations. UNDRIP does not land here in a tabula rasa. We don’t need a UN intervention to recognize Indigenous rights.
Indigenous people have had to fight to establish and then protect those rights. The Supreme Court has made clear what is required, but the current and previous federal governments failed to properly consult Indigenous groups on major pipeline projects. Indigenous groups had to go to court to prove Ottawa had not respected what was already the law. There’s no question Ottawa can do better, but we don’t need UNDRIP for that.
The B.C. bill is modelled after a federal private member’s bill that passed the House of Commons last year, but died in the Senate before this fall’s federal election. In 2015, when the Liberals were Canada’s third party, they rushed to embrace the recommendations of the Truth and Reconciliation Commission, the adoption of UNDRIP being key among them. The Liberals have since promised federal legislation by the end of 2020 that “fully respects the intent of the declaration.”
Proponents of UNDRIP say it will not significantly change how Canada’s laws work – but then why is passing legislation so important? And if it will change the rules of how industrial projects are reviewed and approved, then should B.C. and Canada want to codify it in such a way?
The B.C. bill does differ with its federal cousin. The version that passed the Commons had a line that said UNDRIP would be “affirmed as a universal international human rights instrument with application in Canadian law.” Former Supreme Court Justice John Major – who argues implementing the vision of UNDRIP is “vital” – questioned this particular wording, saying it “could have unpredictable effects.” The B.C. bill does not contain the phrase.
That leads us to the positive aspect of B.C.'s plan to implement UNDRIP. It will apply only in one province, and it will give voters across the country, and the federal government, a chance to see how this works in practice, what it changes and if those changes are positive or negative.
B.C.’s move also provides an opportunity for Ottawa to slow down. The Liberals have promised their own bill but instead could use the next few years of this minority federal government to study the effects of UNDRIP in the province. Legal challenges will arrive sooner than later. The Liberals can weigh their promise of federal legislation on such results – and if they proceed, how best to craft their approach. The federal Liberals want to move fast – B.C. offers time for additional consideration.