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After three failed attempts by private members to pass bills implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the Trudeau government is on the verge of pushing its own version of such a law through Parliament.

Bill C-15 is in third reading and, barring any procedural delays, the Liberals should be able to pass it before an election expected later this year.

Once passed, the law will require Ottawa to “take all measures necessary to ensure the laws of Canada are consistent” with UNDRIP. This used to be a problematic idea for Canadian governments.

Canada voted against UNDRIP when the UN adopted it in 2007. The Harper government argued that, since Indigenous rights are already constitutionally entrenched, their extent and limits fleshed out in multiple court decisions, UNDRIP risked rewriting all that.

But the biggest concern was UNDRIP Article 28. It says development cannot happen on traditional Indigenous lands without the “free, prior and informed consent” of Indigenous communities. That wording suggests an Indigenous veto over natural-resource projects.

Under Section 35 of the Constitution, “the existing aboriginal and treaty rights of the aboriginal peoples” are guaranteed. The courts have ruled that this imposes extensive obligations on the Crown to consult, to negotiate, to mitigate and to compensate if a proposed project crosses traditional Indigenous territory. But there is no veto.

The Harper government eventually endorsed UNDRIP, but declined to entrench it in Canadian law.

Ottawa’s position changed in 2015, with the election of the Trudeau Liberals to an unexpected majority. They came into office with a promise to embrace and entrench UNDRIP.

Now UNDRIP is close to becoming Canadian law, even though it’s fair to say that none of the concerns raised about it have been answered by the Trudeau government.

The Liberals insist that the “free, prior and informed consent” (FPIC) provision does not amount to giving Indigenous communities a veto over natural-resource or other development projects. But that’s entirely unclear.

The bill could be worded so as to end this uncertainty, but it isn’t. There are good political reasons for that. The lack of clarity allows the government to straddle the fence, and to drop hints out of both sides of its mouth.

UNDRIP has become a potent symbol, and the debate tends to sink into empty symbolism. But all that should really matter to anyone is its substance, and its impact. And that is, deliberately, clear as mud.

So what happens after the bill is adopted? “FPIC is a process,” Justice Minister David Lametti said earlier this month at committee hearings. “It will be contextual, so there is no way to precisely define it at the outset.

This isn’t helpful. Canada has had a troubled history when it comes to Indigenous consultation around natural-resource and development projects. But since the 1982 Constitution and its Section 35, the courts have imposed a heavy duty to consult. Adopting UNDRIP and its call for free, prior and informed consent could upend existing law. It will at the very least muddy it unhelpfully.

But beyond all the muddying, it might also do nothing. Bill C-15 contains no clear measures for ensuring that other laws are made consistent with UNDRIP. There is a requirement to draw up an action plan within two years, and for the government to report annually to Parliament, but this is not a bill armed with either clarity or teeth.

Indigenous people themselves are split on its worth. At best, some see it as a small step forward. At worst, it’s viewed as a flawed act that will change nothing, and which has been rushed through Parliament under the cover of a pandemic.

The only people certain to gain from C-15 are the Liberals. The government may not know what impact the FPIC article will have on Canadian law, but it’s willing to sign a blank cheque – one it is deliberately leaving blank. To the courts will be given the riddle of how much settled law this bill changes, or how little. It will be a huge make-work project for lawyers, sparking rounds of lawsuits and judgments and appeals. It will take years, possibly decades, to settle.

By then, once the meaning of C-15 is clear, it will be some other government’s problem. The Liberals only have their eye on the next election.

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